Some unexpected ins and outs of an executive power
The President’s power to pardon people accused or convicted of crimes is in the news like it hasn’t been since Clinton pardoned a number of dubious people on his last day in office, or maybe even since Gerald Ford pardoned Richard Nixon. And it’s in the news for a good reason: Trump and his inner circle are under investigation for a truly stunning array of major crimes, ranging from accepting illegal foreign campaign contributions to actively conspiring with a foreign power to subvert elections, and just a few days ago, Trump made vividly clear that he would happily pardon anyone he saw as furthering his own cause.
What this means is that discussions of pardons aren’t just about legal theory: they’re about the practical ins-and-outs of criminal investigations, political lobbying, and just what a determined prosecutor can do to bring a corrupt politician to justice, when that politician seems to have unlimited power to stop him.
The answer may be, more than you expect — but not in the ways you expect it.
What Pardons Are
Before we talk politics, let’s briefly look at what pardons are, and how they apply to the current (very unusual) situation.
(Here the usual disclaimers apply: I am not a lawyer, and even more so, I am not your lawyer. If pardons, criminal conspiracy charges, or any of the other things we’re talking about below are in your personal future, then you seriously need to be hiring a lawyer of your own and not reading articles about politics.)
The President’s pardon power comes from Article 2, Section 1 of the Constitution, which is characteristically brief:
“[The President] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
On its face, this power is almost unlimited: no other branch of government has an obvious ability to review this. But its vagueness also works against it; for example, the question of whether the President has the power to pardon himself is based not on the text of this power, but of whether that power would go against some more fundamental aspect of the Constitution. And like many legal questions around the limits of pardons, it’s never actually been tested in court: in fact, nearly the only limit that the courts have agreed upon is that, while you can pardon someone for an act they’ve been accused but not yet convicted of (like Ford did for Nixon), you can’t pardon someone for a crime they haven’t committed yet.
The impeachment restriction is not primarily about the President: it mostly comes into play when Congress impeaches some other public official. Since the penalty for impeachment is limited to removing someone from office and never letting them hold office again, this simply bars the President from immediately reinstating someone that Congress removed.
In fact, impeachment — especially of the President — has almost nothing to do with law, a common (and dangerous) misconception. There is a very simple legal definition of an “impeachable offense:” “Whatever Congress wants to impeach you for.” Impeachment is a purely political process, and its only requirement is a majority vote in the House, followed by a “trial” by the Senate and requiring a two-thirds vote there. The quotes are because this bears little resemblance to an ordinary trial; the question is not whether any specific law was broken, but whether the Senate believes this person should be removed, end of message and off.
The entire question of criminal charges against a sitting President is surprisingly unsettled: it’s not even clear whether a sitting President can be criminally charged at all, or whether this would violate the separation of powers. Trump certainly seems to believe that the answer is “no,” including for crimes committed before taking office; but as far as I know, no court has ever ruled on this. (Interestingly, the question of civil suits has been settled, in Clinton v. Jones: the President can be sued for actions unrelated to their official duties. That case would no doubt be an important precedent if the question of criminal charges ever came up.)
These facts are the crucial context to understand Mueller’s investigation of Trump’s coterie. While he can certainly criminally charge them, the President has the power to pardon them the moment they’re charged. It’s not clear whether he can charge the President himself, and such a matter would almost certainly go to the Supreme Court; knowing the Court, they would very much prefer if Congress were to deal with the matter via impeachment and trial. But Congress is under no obligation to act, and Paul Ryan and Mitch McConnell, however much they may despise the man personally, continue to find him useful enough that they have no urge to rock the boat or potentially harm their party. Just to make it more complicated, Mueller technically reports to Jeff Sessions, one of the men under investigation, and depends on Congress for his budget — the same Congress that may have reason to want to avoid scandal.
So Mueller is facing an extremely subtle legal and political situation, and the pardon power falls smack in the middle of this. If he does find that Trump is smack in the middle of criminal conduct (something we can’t know yet, of course, but something you would be a fool to bet against), he could try to file criminal charges and rely on top lawyers to argue whether he even can do so; but his most effective tool will probably be to publish a report of his findings. That report would almost certainly be classified and sent only to Congress, and Congress would print its own highly redacted version for the public, likely some time later; so the strategic use of leaks (much like Trump himself does) may be crucial in how the investigation progresses. Because ultimately, if things play out in the political arena, what really matters is public opinion, not the law.
But here’s where the pardon power gets powerful: the most common method an investigator has for dealing with a conspiracy is to find one person, maybe some low- or mid-level crook that screwed up enough to leave behind evidence, let’s call him Baul Canafort, and bring him in and say: “Baul, we have enough evidence stacked up here to send you to prison for the next hundred and twenty years. You are completely, utterly, boned. But if you are willing to make a deal and testify, tell us everything you know about this conspiracy, maybe you can be out of prison before the final fall of human civilization.” And by putting the screws to this hypothetical Mr. Canafort, they get testimony and evidence that lets them put the screws to the next higher-level player, and so on and so forth, until there’s finally enough evidence to go after the big fish.
But if a member of the conspiracy has pardon power, this all breaks down. Baul could just sit and smile, knowing that the evidence means nothing if his partner in crime can and will just sign a piece of paper and make it all go away. He has nothing to lose, and so no reason to testify — and the facts which could make a case never come out.
So now it becomes very important to ask: What kinds of things can’t the President pardon away for his minions? There are three interesting legal limits: one that we know about for sure, and two even more interesting ones that the courts may test.
The Federal Limitation
The first limit is the federal limitation. The pardon power is for “Offenses against the United States;” that is, it applies to federal crimes only. State crimes (which are the majority of criminal law) can be pardoned only by the respective governors. This makes it particularly interesting that, in the past few days, Mueller’s team has started meeting with New York Attorney-General Eric Schneiderman about its investigation into the finances of Paul Manafort, Trump’s former campaign chairman. (No relation, of course, to our previous and purely hypothetical Mr. Canafort)
Before working for Trump, Manafort worked for a fascinating array of dictators and kleptocrats, including such luminaries as Angolan warlord Jonas Savimbi, Ferdinand Marcos, Mobutu Sese Seko, and most recently, liaised between Putin’s government and the pro-Russian Ukrainian government of Viktor Yanukovych, for which he is currently under investigation by the Ukrainian government for money laundering. In the United States, he appears to be under investigation for a wide range of financial crimes as well, and just a few weeks ago federal agents searched his home and left with box after box of papers.
It’s important to note that the crimes with which Manafort may be charged may well have nothing to do with the present affair; but if a US Attorney comes across evidence of other crimes in the course of a legal investigation, he’s perfectly within his rights to charge them as well, or (if they’re state crimes), hand them to the appropriate state attorney.
Mueller’s discussions with Schneiderman seem to suggest that he is taking this path, and as it is the most well-established and uncontroversial limit to the pardon power, it’s pretty clear why.
The Power of the Courts
Trump’s pardon of Joe Arpaio has raised another interesting question about the limits of pardon power. Arpaio has a twenty-year record of brutality and lawlessness, one of the most violent criminals ever to wear a badge. In 2007, he became the subject of a class-action lawsuit over his department’s systematic practice of arresting people for looking Hispanic, and running an illegal “anti-immigration posse.” Despite Arpaio’s efforts to destroy the evidence, the courts ruled soundly against him, and in 2011 placed him under a court order sharply restricting his behavior in this space. Arpaio largely ignored the court order, and was charged with criminal contempt, being convicted in federal court on July 31st, 2017. A few weeks later, Trump pardoned him.
This pardon is now being challenged in court as being unconstitutional. The argument is clearly outlined in a letter sent by a group of lawyers to the Criminal Division of the Justice Department, quoted by the Washington Post:
“[F]or due process and judicial review to function, courts must be able to restrain government officials. Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief… ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction — principally, contempt of court.”
That is, they argue that contempt of court is not like an ordinary criminal charge: it is the mechanism by which court orders are actually enforced. This is the same issue raised by the “Trial Balloon” case, where Customs and Border Patrol (acting on Trump’s orders) refused to obey court orders: if the courts have no method to enforce their orders that doesn’t rely on the Executive Branch’s assistance and cooperation, then the Executive Branch is above the law, and neither the President nor anyone acting on his behalf can be stopped by any law.
If Trump can legally pardon Arpaio, then he has the power not just to pardon criminal offenses, but to render any court order null and void — civil orders, discovery orders, restraining orders — simply by removing any penalty for violating them. He would have a completely unrestrained power over the courts.
The question of whether this is legal or not will probably take several years to play out; it’s very likely that the case will outlive the Trump regime, and possibly even Arpaio himself. But if there is still a legal system by the time it’s settled, this will have tremendous impact on the long-term meaning of pardons.
The Pinkerton Limit
There is a third limit, though, one even more untested than the Arpaio Limit, which may prove extremely relevant in the near future. It’s a little-noticed aspect of the law recently noted by attorney Andreas Schou, and — if it holds up in court — it essentially means that you can’t pardon members of a conspiracy that you’re a member of.
Because the legal argument is rather technical, let me try to boil it down to plain English. The “Pinkerton Limit” is all about the crime of conspiracy. The exact definition is this:
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy…”
That is, if a group of people conspire to commit a crime, and then one of them does something to actually achieve the objectives of the plan, the entire group has committed conspiracy. Conspiracy is a crime separate from the underlying crime you’re conspiring to do, so you can be charged with conspiring to do something whether or not you succeed. It’s also a crime separate from the specific “act to effect the object of the conspiracy,” which doesn’t even have to be a crime in its own right; if you go out to buy the guns for a bank robbery, or the fertilizer to build a bomb, the conspiracy is still illegal even if the purchases were otherwise 100% above-board.
This is tied to another important aspect of the law, which is that if you do something otherwise legal for an illegal purpose, that can still be a crime. That doesn’t void the action — in the example above, you still own the guns you bought — but it also doesn’t mean you aren’t going to jail for it. That’s also true when the actions have to do with official corruption: as Schou points out, “if you pay a bribe to get a building permit, you get a building permit, and you also go to prison.”
While a conspiracy charge is relatively small potatoes on its own (it carries a maximum five-year sentence per count), it becomes much more serious because of “Pinkerton Liability” — named after Pinkerton v. United States, a 1946 Supreme Court case which established that all members of a criminal conspiracy are legally liable for the illegal acts committed by their co-conspirators in furtherance of the conspiracy, whether or not they personally participated in each individual act. This means that, like racketeering charges, conspiracy charges can get very serious very fast.
(If you want to learn more about how conspiracy law works, Nathaniel Burney’s “Illustrated Guide to Criminal Law” has an excellent explanation.)
Now here’s where it gets interesting. The President unquestionably has the power to pardon people, but a pardon used for a corrupt purpose can still be a crime — for example, obstruction of justice. (And as UMich law professor Barbara McQuade points out, the question of whether Arpaio’s pardon was done for precisely this corrupt purpose — to signal to prospective defendants in Mueller’s investigation that they need not cooperate with authorities — is one sure to be high on Mueller’s radar right now.)
So let’s say — again, completely hypothetically — that you have a bunch of people engaged in a criminal conspiracy, one of whom has pardon power. As soon as any conspirator is charged with anything, including conspiracy, that person pardons them, and poof! the charges vanish.
But if the pardon itself is done in order to further the goals of the conspiracy of which the pardoner was a member, then it’s also an act in furtherance of the conspiracy — which means that it activates a whole new conspiracy charge, even if it just quashed all the previous ones! And since conspiracy is a group charge, that means that all the conspirators are (once again) subject to it.
What’s important about this legal approach is that, unlike anything related to impeachment or the ability to criminally charge a President, this is an issue which would be worked out entirely inside the courts, and so subject to legal, not political, rules.
It could play out like this: Mueller charges one or more of Trump’s co-conspirators with a bunch of federal crimes, including conspiracy. If Trump pardons them, he immediately files a new conspiracy charge, now alleging the pardon itself as an overt act. The defendants would (no doubt) move to dismiss those charges on the grounds that a pardon is a legally protected action which can never be evidence in a criminal case, and probably on a few other legal theories as well. Regardless of the result, it would get appealed, and ultimately end up in front of the Supreme Court, where the question of what the law actually says, and the technical details of Constitutional law, would be the deciding factor.
If we go back to the broader picture of this entire investigation, the resulting case would be important no matter how the courts rule, because having a stack of pending conspiracy charges, with Pinkerton liability thrown in, sitting before the courts for years is great negotiating leverage with potential witnesses. Combined with state charges, which can’t be pardoned away by the President, Mueller may have enough leverage to get people to spill the beans — and we can at last find out just what was going on behind the closed doors of Trump Tower and the Mayflower Hotel.