The implications were obvious: Because a pardon can operate as the constitutional equivalent of a get-out-of-jail-free card, Eastman, Perry and other Republicans in Congress wanted protection from possible criminal liability for crimes they may have committed in furtherance of Trump’s lawless efforts to undermine the 2020 election results and subvert the peaceful transfer of power.
It’s not just that these people may have incriminated themselves by their requests. It’s the notion that the president’s power itself is so broad that they might have received one legally if Trump so chose. People are rightly asking: Can a president really grant a pardon to someone who may have criminally obstructed an official proceeding at his behest? Isn’t it obstruction if the president gives out pardons in return for a political favor? And what if he wrote preemptive, so-called “pocket” pardons for his family members, as the New York Times reported was discussed in December of 2020?
Like other constitutional conundrums stoked by Trump, there is no legal precedent establishing the legitimacy or illegality of either quid-pro-quo or pocket pardons. Yet there is a line of legal thinking, advanced by Trump and his allies, that holds the president’s power to pardon as so absolute that it can never be improperly granted and therefore no request for a pardon can be considered illegal either. During the Mueller investigation in 2017, Trump tweeted his belief that “the U.S. President has the complete power to pardon.”
This is not a universal belief and shouldn’t be.
At his confirmation hearing in 2019, former Trump Attorney General Bill Barr was asked whether a quid-pro-quo pardon is a crime. He testified: “I think that if a pardon was a quid pro quo to altering testimony, then it would definitely implicate an obstruction statute,” and if issued in exchange for a promise not to incriminate the president, “would be a crime.” In December 2020, U.S. District Judge Beryl Howell released a redacted order describing what she called a “bribery-for-pardon” investigation already underway by the Justice Department. The blacked-out document did not reveal the names of the people involved but stated that federal prosecutors had evidence of a Trump-era bribery scheme involving offers of “a substantial political contribution in exchange for a presidential pardon or reprieve from sentence.”
The pocket pardon issue was raised during the Watergate era, with then-DOJ pardon attorney Lawrence M. Traylor reportedly telling The Washington Post that “the president could present himself with a written pardon during the next months, date it and quietly deposit it in a trust vault — ready to be pulled as a defense or waiver at any subsequent trial.” Other experts disagree. Margaret Love, who served as U.S. pardon attorney from 1990 to 1997, has contended for example that “the president can do this pretty much in any form he wants, as long as it’s a public announcement.” Secret pardons would presumably not qualify.
Despite the historical record and the public statements of Trump’s own attorney general, no one should be surprised if Trump or select accomplices produce a batch of secret pardons in the increasingly likely event that Attorney General Merrick Garland pursues high-level indictments of Trump or his top allies. (The New York Times reported in December of 2020 that Trump discussed with advisers whether to grant preemptive pardons to Giuliani, Donald Trump Jr., Eric Trump, Ivanka Trump and her husband, Jared Kushner.) And if stealth pardons don’t already exist in some vault, Trump is clearly contemplating how he might write them during a future presidency.
At the Faith & Freedom conference recently, exactly one day after the Jan. 6 committee hearing at which Eastman’s pardon request was revealed, Trump told the crowd that he could pardon all of the roughly 860 Jan. 6 defendants charged thus far: “If I become president someday, if I decide to do it, I will be looking at them very, very seriously for pardons. Very, very seriously. They’ve been treated very unfairly.”
The specter of quid-pro-quo and pocket pardons, not to mention the potential for a mass pardon of hundreds of rioters who have already been criminally charged and face sanctions, exposes serious problems with how the president’s constitutional pardon power is perceived, distorted and abused. Congress must take steps to fix it.
Article II, Section 2, of the Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” No president has been held legally accountable for perceived abuses of the pardon power, including via impeachment trial and conviction, which until recent years was the primary functional constitutional mechanism for addressing bad acts by presidents. (“Endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony,” was included in the articles of impeachment that the House Judiciary Committee passed against President Richard Nixon, but he resigned before he could be impeached.)
Some experts argue that all presidential pardons are by definition constitutional. Former Harvard Law School professor Alan Dershowitz, who represented Trump in his first impeachment trial, has written that “a president may never be charged with obstruction of justice for … pardoning potential witnesses against him … The constitution explicitly authorizes the president to pardon anyone.” Under this theory, anyone with a pocket pardon who would otherwise be in the sights of DOJ could whip it out and outmaneuver criminal liability.
Such unrestricted readings of the pardon power could also operate as a possible defense in cases charging individuals with corruptly having sought a pardon. To secure an obstruction of justice or bribery conviction, the government would have to prove that either the pertinent officials within Trump’s chain-of-command, such as Kushner — who told the Committee that his “interest at that time was on trying to get as many” pardons done as possible — or the likes of Eastman or Perry, acted “corruptly.” (Perry, who is now the leader of the House Freedom Caucus that includes Reps. Paul A. Gosar (R-Ariz.) and Marjorie Taylor Greene (R.-Ga.), is implicated in Jan. 6 for having linked up Trump with Jeffrey Clark, a mid-tier DOJ official who has emerged as a central figure in attempts to use the Justice Department to undermine the election outcome.) If every flavor of pardon is de facto legal, the defense argument would go, then asking for a pardon can never be done corruptly or for an illegal reason.
By its express terms, the presidential pardon power is constrained in two ways: It only applies to federal crimes, and it excludes convictions for impeachment. Although many post-Revolutionary states circumscribed the executive pardon power under their own constitutions, efforts to require Senate consent for pardons or to make treason unpardonable were rejected at the 1787 federal constitutional convention.
Nonetheless, those who insist there are no limits on the presidential pardon power are wrong.
In 1877, the Supreme Court in Knote v. United States held that if a defendant is required to forfeit money to the U.S. Treasury as part of a criminal conviction, a presidential pardon does not operate so expansively to entitle him to a refund.
In Ex parte Grossman, the Supreme Court in 1925 stated that a president can issue a “reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.” Thus, a president could not immunize himself or someone else from prosecution for future crimes before they even occur, otherwise he would be empowered to dispense with the law altogether. In the same case, the Court held that a pardon cannot be issued for civil (versus criminal) contempt of court, even though civil contempt can result in jailtime.
The DOJ’s Office of Legal Counsel opined in 1974 that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” Also in 1974, the Supreme Court in Schick v. Reed stated that “considerations of public policy and humanitarian impulses support an interpretation of that power … which does not otherwise offend the Constitution.” Under this language, the president cannot duly issue pardons that violate another provision of the Constitution. A nationwide pardon confined to white people, for example, would impermissibly violate the constitutional right to equal protection and its ban on race-based discrimination.
None of these limitations on the pardon power appear in Article II, mind you. So it’s an overstatement to insist that the presidential pardon power has no boundaries other than what’s specifically in the text. To suggest that Trump or any other president can use the pardon power to insulate himself and cohorts from accountability for committing crimes in the White House, including possibly sedition against the U.S. government itself, is illogical and antithetical to the foundational principles of limited government.
That said, there are only a handful of ways that constraints on the presidential pardon power could become law moving forward.
The Constitution could be formally amended, of course, but the necessary congressional and state legislative supermajorities make that option a practical impossibility. Congress could revise the U.S. Code to make it clear that dangled pardons are things “of value” that can trigger bribery laws. Rep. Adam Schiff (D-Calif.) introduced a bill to that effect back in July 2020. In January 2021, Rep. Raja Krishnamoorthi (D-Ill.) introduced a bill that would require publication of the name of any person pardoned by the president, the date the pardon was issued, and the full text of the pardon. Such a measure, if enacted, could outmaneuver pocket pardons for future presidents, although if a president ignored the law and a criminal case involving a secret pardon ensued, it would ultimately be up to the Supreme Court to decide if public transparency is a legitimate constraint on the scope of the pardon power.
For Trump, as well, all that can be done now is wait and see if Garland indicts someone who manages to produce a pocket pardon. Then we would have to wait for the viability of that defense to make its way to the Supreme Court for resolution. Barring that, as with former President Gerald Ford’s pardoning of Nixon when no charges had even been brought, it will remain the president’s prerogative. Allowing Trump to establish new precedents would cement presidents’ self-serving power to use pardons corruptly and with impunity.