Vail Law: The breadth of presidental power to pardon may be tested (column)
One way or another — explicit or implicit, repeated as a mantra or only wished for in some desperate private mutterings — this sentiment, lately directed at the president (perhaps most shamelessly by Roger Stone associate, Jerome Corsi), seems on the air.
With the latest filings fresh off the press, including those involving former campaign chair, Paul Manafort, and former Trump personal attorney, Michael Cohen (who, on the day this column is published, is slated to be sentenced for the nine felonies to which he pleaded guilty), rather than Ronald Reagan’s famous “morning in America,” if feels a lot more like just before the gloomy stroke of midnight on the Trump experiment.
Perhaps or perhaps not. Only time and Robert Mueller will tell.
However this turns out — whatever kith or kin are ultimately swept up in the Special Counsel’s probe — the words “presidential pardon” — if not exactly an arcane concept, at least one rarely contemplated — have entered our collective consciousness and become a frequent subject of the national dialogue. If the tentacles of justice reach out to snag So-and-So, will the president pardon him/her/them and, if he did, what would be the implications, legal and political? And what if the tectonic happens? What if the president himself is implicated? Can he, as he has previously suggested, pardon himself? Not since President Nixon was caught with his fingers in the Democratic headquarters’ cookie jar have such subjects been regularly astir.
Perhaps most controversially to date, has been Trump’s pardon of convicted Arizona’s former Maricopa County sheriff, Joe Arpaio, a vocal Trump supporter, who was given the executive “get out of jail free” card. Sure, it raised some eyebrows but, in Trump’s springing Arpaio, there were no implications of any presidential misconduct. However unseemly some construed Arpaio’s pardon, it was “scratch-my-back-and-I’ll-scratch-yours” politics if not exactly “as usual” at least it was familiar. There was resonance, for example with former President Bill Clinton’s 11th hour pardon of fugitive financier, Marc Rich.
Most shrugged off the Arpaio pardon and it was quickly written off.
But what if …?
But what if the presidential pardon were exercised to save the president’s own skin? Presumably, that is where the dialogue in our politically fractured nation would get interesting. How would the political seas divide and would anyone of prominence — a latter-day Margaret Chase Smith? — dare breach the divide?
All of this begs the question: From where does the president’s power to pardon derive? What was its original intent? And when and how can it be wielded?
Let’s dig in.
Going back — way back — the power has its roots in the fertile soil of the British monarchy. When the kings and queens of the empire were truly kings and queens instead of merely gossiped-about figureheads, they wielded almost unfettered powers, among them the right to spare the head of whomever struck their royal fancy. The British monarchial power dates back to at least the seventh century and from there, may be traced even further to amnesties granted by the Greek, Roman and biblical kings. As the 18th century English poet, Alexander Pope, observed, “To err is human, to forgive, divine.” And when the kings weren’t themselves as gods, the gods at least whispered in their ears.
In short, the power to pardon is neither something new nor something unique to the United States.
When the founders were fashioning our Constitution and were debating, pondering, cogitating and arguing over what shape it should take, they did not do so out of whole cloth. They considered what had worked in other times and other cultures. And like a greedy neighbor knocking on your door for a pinch of this and dash of that, they borrowed heavily. Sure, there were innovations but not everything was exactly “made in America.”
One of the varied things that popped up was pardons. If not to be exerted by the king — as the United States would have no king — should pardons be available to the chief executive? As it turned out, of course, the answer ultimately was “yes.”
The presidential pardon is enshrined in Article II, Section of the Constitution. Like so much in our founding instrument, it is a model of brevity, holding that the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
‘Humanity and good policy’
Alexander Hamilton explained the reasoning in Federalist No. 74; “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor or unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Although this may seem a bit bloviating to modern ears, in short, what Hamilton was saying was that it was the right thing to do, that exceptions should sometimes be made.
In theory anyway, the power is almost without limits; there are only two express constraints. First, the offense to be pardoned must be one “against the United States.” Thus federal crimes but no state crimes may be pardoned. Second, one impeached may not be thrown the life ring of a pardon.
Whether the president may pardon himself has not been tested but the general consensus of Constitutional scholars is, “nah.” Fundamentally, so doing would be illogical on several grounds. First, the Constitutional provision provides that the president may “grant” reprieves and pardons. “To grant” implies something conferred on one person by another and does not suggest self-service. Second, it is a fundamental precept of law that one may not judge himself. Doing so would turn the justice system on its head.
Could the president pardon some or all of those caught up in the Russian probe? Most likely yes, but so doing would raise the question of whether such conduct amounted to obstruction of justice or an impeachable offense.
Much of this is terra incognita. While analogies can be made, stated simply, this land has not been previously trod.
While the president certainly has the power to pardon, we may soon find the extent of his ability to do. How far may it be stretched and will it snap back like a rubber band? Only time, Robert Mueller, the courage of our courts and legislators and the president himself will tell.
Stay tuned …
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.