July 2018Strategy

Absolute Pardon Power -- Absolutely Not

I am no fan of President Trump. I did not vote for him in 2016 and certainly won’t be voting for him in 2020. However, as a lawyer, I can’t help but bask in the interesting constitutional law questions he raises. He has pushed our founding document to its outer limits and his actions have raised legal questions few presidents or scholars ever had to consider. Most recently, President Trump claimed that according to numerous legal scholars, he has “the absolute right to PARDON” himself if wrongdoing from the Russia investigation emerges. Let’s ignore the fact that within the entire legal world, few if any absolutes exist. If the law had absolutes or definitive answers, law school wouldn’t be so challenging. Any first-year law student could tell you that more times than not, the law operates in a gray area.

More importantly, in the area of presidential pardons, it is ridiculous to say self-pardoning is “absolutely” legal when it has never been tested or evaluated by any U.S. court. The idea hasn’t even been seriously discussed on any level since the days of Nixon (where Mary Lawton, acting assistant attorney general, wrote a memo stating Nixon could not pardon himself). Although not a qualified legal scholar for the Trump team, I think I can lay out a pretty straightforward argument for why the Constitution absolutely does not support the concept of presidential self-pardon.

On a plain reading of the Constitution, you may in fact miss the pardon power. According to Article II Section II, the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” That’s all. The word “pardon” only appears once in the entire document. It’s vague, unspecific and, as stated earlier, entirely untested in the legal world. Hamilton’s Federalist No. 74 sheds some light on the original purpose and intent of the pardon power, but his words are more of a hindrance than a help to Trump’s position. Hamilton notes that “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” So, it appears that Hamilton seems to favor a broad and uninjured power to pardon. However, can anyone say with a straight face that it would not be the height of embarrassment for our country if the Mueller investigation implicates President Trump and then he immediately absolves himself of wrongdoing via pardon? Would it be “good policy” to hold our president and leader above the law? I think not. Such action would offend the very essence of the Constitution and for that reason, limits must be placed on Hamilton’s broad definition.

Hamilton goes on to say that the pardon power is necessary because it provides “easy access to exceptions in favor of unfortunate guilt.” Hamilton knew, as we do today, that criminal justice systems are imperfect and oftentimes the system excessively punishes individuals. Case in point, President Obama’s often liberal use of the pardon power to commute the sentences of individuals who received lengthy prison sentences for possessing small quantities of drugs. The rationale? That mandatory minimums and statutory firearm enhancements are unfair in the case of nonviolent crimes. Laws are imperfect because the humans that create them are imperfect. As such, sometimes a second look is required to ensure that second chances are given when deserved. However, does anyone really believe that the criminal should be the one having the second look? That’s just bad legal policy. When Hamilton mentioned “easy access,” I don’t think he meant something that easy.

I cannot speculate on the contents of Robert Mueller’s investigation, but should it implicate President Trump in either colluding with Russia or obstructing justice, any individual would be hard pressed to say Trump was the victim of “unfortunate guilt.” To date, four Trump campaign associates — Michael Flynn, Paul Manafort, Richard Gates and George Papadopoulos — have been charged in the Mueller probe. Even if President Trump is found innocent of any wrongdoing, he is at the very least guilty of having amazingly poor judgment and a knack for surrounding himself with criminals. Nothing about his guilt would qualify as “unfortunate.”

Perhaps most damning for Trump is Hamilton’s belief that “a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution.” That’s a mouthful, but essentially, Hamilton believes that the president is most apt to carry out the pardon power because he can be merciful where a group may not be and can weigh the need for mercy in times when the law is unfair. Remember, not everyone who applies for a presidential pardon gets one. Sometimes, in fact most times, the president agrees with the courts and leaves their judgments untouched. However, when the judge and accused are the same person, Hamilton’s argument and any sense of justice completely collapses. No one should stand in to judge their own case, not even the most powerful man in the world.

Conflicts of interest happen all the time in the legal world and our country demands impartiality from those dispensing justice. Judges recuse themselves all the time if even a whiff of favoritism exists, and it is easy to see why. Would anyone respect a judge or their decisions if blatant biases existed? I don’t think President Trump has the right to pardon himself, but no one can answer that question with any certainty. However, it follows logically that if the president can pardon himself, the president is by definition above the law. This notion is contrary to everything American law stands for. Anyone who has studied the Founders, original intent, and the Constitution, would find it laughable to think that the Founders took so much time and energy in crafting Article II and restraining the powers of the president, only to immunize him from federal crimes.

Joseph Gulino, an attorney and educator, is an MDC DSA member in Montgomery County.

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