Pardons and Their Limits

Throughout his administration, Donald Trump has tested the limits of presidential power. On his way out the door, he is testing the limits of the pardon power.


This week the Covid pandemic reached new heights and threatened to break America’s hospital system. The total number of American deaths will soon pass the number of combat deaths in World War II.

So of course the White House had not a word to say about any of that. Instead, the President’s attention was absorbed by more pressing problems: the continuing failure of his attempts to overturn the election he lost by seven million votes, and the criminal exposure he and various members of his family and his administration might face come January 21, when he no longer has the power to restrain the career investigators and prosecutors in the Department of Justice.

The first of the expected rush of lame-duck pardons was given to former national security advisor Michael Flynn. Signed the day before Thanksgiving, the text was only released last Monday. [1] Since then, Trump is reported to be discussing pardons for his children, up to 20 members and allies of his administration, and himself. [2]

All of that may yet come to nothing; Trump frequently is said to be thinking about some action that never happens (like releasing a healthcare plan). But given the approaching deadline, it’s worth considering what he can actually do.

Article II. The President’s power to pardon is established in Article II, Section 2 of the Constitution:

The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

That sounds pretty sweeping, but as so often is the case in constitutional law, nearly every word inspires entire articles of analysis. That said, there is one clear limit that just about everyone agrees on: “Offenses against the United States” means federal crimes only. So a presidential pardon won’t protect against prosecutions for violating state laws, or against civil lawsuits.

That’s relevant, because a lot of the post-presidency legal exposure faced by Trump and his family falls outside of his pardon power. He could, for example, try to pardon himself for the seven instances of obstruction of justice that the Mueller report found to be indictable. But if he is guilty of bank and tax fraud (as Michael Cohen has claimed), New York state laws have been violated, and the alleged misappropriation of funds contributed to the Trump Inaugural Committee is a civil suit.

Self-pardons. But that brings up the issue of a self-pardon, which is untested in American law because no previous president has ever tried such a thing. Examined naively, the Article II text would seem to support the idea; it just says “power to grant pardons” with no exceptions other than impeachment.

But North Carolina Law Professor Eric Muller has an interesting interpretation, which ought to appeal to the conservatives on the Supreme Court who claim [3] to believe in Originalism: He can’t find 18th-century usages of grant as a reflexive verb. In other words, one party “grants” something to another; but nobody ever “grants” something to himself.

in the time period from 1750 to 1800 … [t]ransitive uses of the verb—“grant me,” “grant him,” “grant her,” “grant us,” “grant you,” and the like, where the person receiving the grant is different from the person doing the granting—are all common. But reflexive uses, where the person doing the granting is also the person on the receiving end? All but nonexistent.

Leading to the conclusion:

Can Donald Trump pardon himself? Perhaps, but that’s not the question the Constitution requires us to ask. Can Donald Trump grant himself a pardon? The evidence, at least according to the text of the Constitution and its original meaning, says no.

Harvard Law Professor Lawrence Tribe made a similar point to MSNBC’s Lawrence O’Donnell, and added that Article II also stipulates that the President “shall take care that the laws be faithfully executed”. If presidents could pardon themselves, they would instead be exempt from all federal laws — something the Framers clearly did not intend. The King of England might be above the law, but the President of the United States should not be.

We know that the Framers did not bother saying that the president cannot grant himself a pardon, because no one in their right mind would have imagined otherwise.

Specificity. Another problem of constitutional interpretation involves the word pardon itself. What did the Framers think it meant? University of California Law Professor Alan Rappaport argues that the Framers would have seen a pardon as a very specific reprieve from a specific violation of the law.

Most importantly, the Framers would have understood that pardons must be issued for specific crimes. They were not intended to be broad grants of immunity, get-out-of-jail-free cards bestowed by presidential grace.

This would call into question the Flynn pardon, which mentions the specific crime he pled guilty to (lying to the FBI), but also claims to cover

any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.

Can such a “broad grant of immunity” really be valid, when President Trump himself may not know exactly what crimes he has put beyond the reach of legal accountability?

The model for this pardon, and for similar pardons Trump is said to be planning for his family and associates, is President Ford’s pardon of former President Nixon, which granted

a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.

Well OK, then: If Nixon’s pardon is valid, then Flynn’s should be also. But is Nixon’s pardon valid? It was respected, in the sense that nobody put Nixon on trial. But precisely because Nixon’s pardon was never challenged, no judge has ever ruled on its validity.

So if Flynn has committed some crime “related to the investigation of the Special Counsel”, but not specifically identified in his pardon, the next Attorney General will have the option to indict him for it. During the subsequent trial, Flynn could ask the judge to throw out the indictment, because he had already been pardoned. But that motion would have to make its way up to the Supreme Court, because there is no compelling legal precedent for a lower-court judge to cite.

Trump family members might find themselves involved in some similar proceeding. If, say, Don Jr. gets a pardon vaguely immunizing him from anything he may or may not have done, what happens if he is prosecuted for lying to the Senate Intelligence Committee?

If vague, sweeping pardons aren’t valid, Trump’s other option is to list the crimes his children and close associates might be prosecuted for. While this would quite likely be legally valid, it would essentially be an admission of guilt. Such pardons would start to resemble the truth-and-reconciliation model, where crimes committed by an outgoing regime are excused in exchange for a full accounting of them.

Can a pardon itself be a crime? Yes. In his Senate confirmation hearing, Bill Barr admitted that offering a pardon in exchange for false testimony, or for refusing to testify, would be obstruction of justice.

So while the pardon itself might be valid, the President might commit a new crime by granting it.

In his recent book Where Law Ends, Mueller investigation veteran Andrew Weissmann says that Trump’s public praise of Paul Manafort (in particular for refusing to “break” by cooperating with the Mueller investigation, in contrast to Michael Cohen, whom Trump characterized as a “rat“) amounted to dangling a pardon in exchange for his silence. George Packer’s review of Weissman’s book summarizes:

[Manafort’s] lies were encouraged by the president, who made sympathetic noises about Manafort with the suggestion that stonewalling might earn him a pardon. Trump’s pardon power was an obstacle that the prosecutors didn’t anticipate and could never overcome. It kept them from being able to push uncooperative targets as hard as in an ordinary criminal case.

Similarly, the Flynn pardon and the commutation of Roger Stone’s sentence could be interpreted as obstruction.

Side-effects of pardons. Even if Trump’s family and associates have valid pardons, Congress may decide that it wants to know what happened during the various events they might have been prosecuted for. (What exactly was Rudy doing in Ukraine, anyway? When Flynn talked to the Russian ambassador, what instructions, if any, had Trump given him?) So the pardon recipients might be called to testify before congressional committees.

If they are called, they will have no Fifth-Amendment rights to invoke, because they can’t be prosecuted for crimes that have already been pardoned. If they refuse to testify without invoking a valid privilege, they can be cited for contempt of Congress (which a Biden-appointed US attorney might see fit to prosecute). If they testify and lie, that would be a new crime not covered by their pardons.

Not the end of the story. Ordinarily, a pardon is the end of the story: You did something; you were accused and possibly convicted of it; but a pardon wiped the slate clean and the credits roll.

The pardons Trump is considering, on the other hand, might just be another link in the chain of events. Depending on what Biden’s appointments at the Department of Justice decide [4], investigations and prosecutions could still happen, and the Supreme Court would have some important decisions to make.

And whatever the courts decide, Congress could still investigate, and Trump’s various obstructions of justice could still unravel.


[1] Combined with the previous commutation of Roger Stone’s sentence, the Flynn pardon ties up one of the few remaining loose ends in Trump’s obstruction of the Mueller investigation. The only remaining loose end is Paul Manafort, who quite likely will get his own pardon soon. The 2016 Trump campaign connected to Russia in three main ways, and the Mueller investigation ran aground when it couldn’t get the cooperation of Manafort, Stone, and Flynn.

Paul Manafort was the head of the 2016 Trump campaign until he resigned under fire that August. His associate Konstantin Kilimnik turned out to be a Russian agent. Manafort passed campaign polling data to Kilimnik, for reasons that have never been explained.

The emails that Russia hacked from the Democratic National Committee were given to WikiLeaks. Trump associate Roger Stone appeared to have advance knowledge of what was in them and when they would be released. How the Russia-WikiLeaks-Stone-Trump pipeline worked has never been explained.

Michael Flynn was convicted of lying to the FBI about his conversations with the Russian ambassador during the Obama-to-Trump transition. Flynn and Jared Kushner reportedly were trying to set up a “back channel” to Russia that would circumvent US intelligence agencies. What that was for and what Trump knew about it has never been explained.

[2] Just a suggestion: Don’t forget Melania, Don. You do not want her flipping on you.

[3] I think Originalism is a rhetorical device they use when it’s convenient, not set of principles they actually believe. One key example: There is no way the Framers intended the Bill of Rights to apply to corporations.

[4] So far, Biden and Harris have been saying exactly the right things: Whether or not to prosecute Trump-administration crimes will be decided by the Justice Department, which will regain its independence from political meddling.

Our Justice Department is going to operate independently on those issues, how to respond to any of that. I am not going to be telling them what they have to do and don’t have to do. I am not going to be saying, go prosecute, A, B, or C.

Biden is even said to be planning to keep Christoper Wray as head of the FBI. If Wray’s FBI finds evidence of Trump-era crimes, Biden will not have his fingerprints on those reports.

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Comments

  • Roger  On December 7, 2020 at 9:31 am

    I had seen the Eric Muller argument recently. It’s both compelling and comforting.

  • Barb M  On December 7, 2020 at 10:00 am

    You are absolutely RIGHT about the way conservative judges use the very vague legal concept of “originalism.” If it helps them make an argument that allows them to reach an otherwise completely unprincipled decision they are all over it. But if, as is the case with the pardon question, looking at the status of the law and common understanding of the time does not help them, they ignore it entirely.

  • Eric  On December 7, 2020 at 10:07 am

    On the subject of originalsim, I am not certain as to why the Bill of Rights wouldn’t apply to a corporation like the Virginia Company (1624) and or a mythical company like ABC Hotel.

    ABC Hotel would have the right to free speech (1) Amendment, security Second (2) Amendment.and may or may quarter soldiers in times of civic unrest or war etc (3) Amendment.

    If ABC Hotel employee is accused of theft on ABC Hotel property, he or she has a right to a speedy trial and or 5th amendment protections etc.

    States (State Rights) can regulate ABC Hotel in any way they choose, as long as they don’t violate said Bill of Rights.

    • weeklysift  On December 8, 2020 at 11:16 am

      Corporations existed at the time, but they were rare and tightly constrained by law. If you know of some writing of the period that applied the Bill of Rights to them, I would be interested to see it. In general, the Framers were skeptical of corporations, and associated them with the abuses of the British East India Company.

      • Eric  On December 8, 2020 at 2:22 pm

        I concur. Great points.

        I am not an attorney, constitutional scholar nor an expert on case law. However, I would assert that corporations are people I.e. Citizens United. Corporations must be treated as a person for enforcement of laws against them in order to defend said laws.

        In Citizens, it was ruled that the Free speech clause of the First Amendment prohibited the government from restricting independent expenditures for political communications by corporations.

        The Bill of Rights are essentially natural and or inaliable rights, so that; in that; they would apply to all future American endeavors or constructs such as the Internet or Artificial Intelligence. Obviously such platforms were not in existence in 1776, but nevertheless would be no less relevant, as far as the constitution is concerned.

      • Brandon  On December 9, 2020 at 12:05 pm

        I read your site weekly, but don’t normally post. However, the conversation about corporations being people was timely because I’m behind in my podcasts. I doubt I can post a link here but if you search for “On the Media Corporations were always people” you’ll find a podcast from February 19, 2020 that discusses this nicely.

  • TRPChicago  On December 7, 2020 at 10:07 am

    Donald Trump loves lawsuits and knows how to work them to his advantage. So it makes some sense that he will wallpaper his family and friends with pardons, although it removes their ability to take the Fifth (they being in no jeopardy except for perjury and conspiring with their pardoner) and that should be somewhat a deterrent.

    But he is getting older and has ambitions far beyond participating in lawsuits attacking his pardons. He does not want to spend his waning years in or near courthouses in litigation he does not control and won’t be able to spin well enough. So, Donald John Trump will want a bullet proof pardon for himself.

    For reasons covered well by Doug, several scholars and experienced former DoJ lawyers, a self-granted pardon would multiply Trump’s vulnerability. By far the greater preference — political weakness though it may seem to show — would be for Donald to resign and without any direct contact with Mike Pence (lawyers for the both of them can mumble together in code), get pardoned by the 46th president.

    • Anonymous  On December 7, 2020 at 6:44 pm

      Resign and get a pardon from Pence is a route that makes sense, but I don’t really see Trump taking that route. Based on past behavior, I think he takes the bully route.

      If Trump did resign I don’t think that he could do it without talking to Pence about a pardon. The filter between his brain and his mouth is almost non-existent. If he’s going to resign in order for Pence to pardon him, he’s going to talk about resigning in order for Pence to pardon him.

      Also, from Pence’s perspective, does pardoning Trump make sense (an actual question, not a rhetorical one). I think that Pence would like to run in 2024. Does he have a better shot then if he pardon’s Trump or if he doesn’t?

    • weeklysift  On December 8, 2020 at 11:19 am

      I don’t think Trump would have to resign. He could just have some surgery that required general anesthetic, and pass the powers of the presidency to Pence temporarily via the 25th Amendment. Pence could pardon him while he was incapacitated, and then Trump could claim the presidency back when he woke up.

      • Anonymous  On December 8, 2020 at 6:16 pm

        That’s also an idea that makes sense. But I don’t really see Trump taking that route either. Based on past behavior, I think he takes the bully route.

  • Bill  On December 7, 2020 at 10:27 am

    Talk to any seasoned trial attorney, and they’ll tell you about the all too common “completion backwards” method of jurisprudence. Create the outcome that you want, then find a way to justify it. Originalism can be a favorite tool.

  • madelonw1011  On December 7, 2020 at 4:31 pm

    I thought I was getting ready to wind down my political reading over the next 44 days. I’ve read more about this administration, the government in general, and American history than at any other time in my life. (I graduated from High School in 1965.) Now I feel compelled to read Where Law Ends, by Andrew Weissmann. I’ve read the publicly available, redacted version of the Mueller Report from beginning to end (minus all the references) and found it dissatisfying in the extreme. Maybe Mr. Weissman can fix that.

    • weeklysift  On December 8, 2020 at 11:20 am

      I think you’ll find that Weissmann is dissatisfied too.

  • Anonymous  On December 7, 2020 at 6:50 pm

    Thank you, Doug, for such an informative blog post.

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