Preventing and Deterring Unlawful Pardons

Overview

Overview

The presidential pardon power is limited by the Constitution, the system of checks and balances it establishes, and the individual rights it protects—as well as by federal law. If the pardon power were absolute, it would permit the president to place himself above the law and undermine the rest of the Constitution. Congress has a critical role to play in preventing improper pardons.

The pardon power is not absolute, but is constrained by the rest of the Constitution.

• The president may not use the pardon power in a way that violates core constitutional rights or undermines the role of the judiciary in protecting constitutional rights. Thus, the president could not issue a pardon for a category of offenses to all, and only, people of a certain race or religion. Nor can the president issue a pardon that prevents a court from protecting people’s constitutional rights.
• The president may not use the pardon power to place himself above the law. The president may not issue a self-pardon. Similarly, he cannot issue a pardon to impede an investigation into himself or his campaign or business interests; such a pardon, if effective in impairing an investigation, would amount to a self-pardon.
• The pardon power is constrained by laws of Congress prohibiting bribery and obstruction of justice. Congress has enacted laws to prohibit certain types of corruption, such as bribery, and these apply to the president’s use of the pardon power. As a result, the president may not issue a pardon in exchange for a bribe. Nor may he offer or issue a pardon to influence or tamper with a witness’s testimony in an ongoing investigation.

As a co-equal branch of government, Congress has an important role to play in preventing the president from abusing the pardon power.

Congress should use its oversight authority to investigate potential improprieties and can use its power to impeach if it finds abuses of the pardon power.

• Congress should employ its extensive oversight tools to investigate potentially unlawful pardons or promises of pardons. Congressional committees may request or subpoena documents and witness testimony to determine the context and intent behind issuance of particular pardons or pardon offers, and should publish reports to ensure transparency and allow for public scrutiny.
• Congress should pass legislation that ensures lawmakers have access to relevant materials in cases of pardon abuse. Congress should require that the Department of Justice and White House Counsel submit to it all investigative materials related to an offense for which the President issues or offers to issue a self- or self-protective pardon, as well as records of conversations and materials associated with its consideration.
• Congress should reiterate that federal bribery and obstruction of justice laws apply to issued or offered pardons. To correct for any uncertainty that may arise as to whether these laws apply to the President, Congress could preemptively revise relevant federal bribery and obstruction of justice statutes to remove all doubt.
• Congress should codify the requirement that the court must appoint a private attorney to prosecute contempt of court for defying a court order that protects others’ constitutional rights in a case in which the Justice Department abandons an investigation or prosecution after the President issues a pardon.
• Congress should delimit the constitutional boundaries of the pardon power through a Sense of Congress resolution. While non-binding, the resolution would clarify the legislature’s understanding of appropriate limits of the President’s power in order to uphold the Constitution.

To: Members of Congress

From: Protect Democracy

Date: September 2018

Re: Legal limits on the pardon power

This short memorandum describes the major categories of limitations on the pardon power. As shown in the analysis below, while the pardon power is broad, it is not unlimited. The pardon power must be informed by the entire Constitution, the system of checks and balances it establishes, and the individual rights it protects. The pardon power plays an important role in the Constitution, allowing a president to provide mercy and correct injustice. But if the pardon power is read to be absolute, it would override the rest of our constitutional system.

This memorandum makes four key points:

I. The president may not use the pardon power in a way that violates core constitutional rights or undermines the role of the judiciary in protecting constitutional rights. Thus, the president could not, for example, issue a pardon of a category of offenses for all, and only, people of a certain race, or withhold pardons from followers of just one religion. Nor can the president issue a pardon that prevents a court from protecting people’s constitutional rights.

II. The president may not use the pardon power to place himself above the law. The president may not issue a self-pardon. Similarly, he cannot issue a pardon to impede an investigation into himself or his campaign or business interests; such a pardon, if effective in impairing an investigation, would amount to a self-pardon

III. The pardon power is constrained by laws of Congress prohibiting bribery and obstruction of justice. Congress has enacted laws to prohibit certain types of corruption, such as bribery, and these apply to the president’s use of the pardon power. As a result, the president may not issue a pardon in exchange for a bribe. Nor may he offer or issue a pardon to influence or tamper with a witness’s testimony in an ongoing investigation.

IV. Congress can and should uphold the Constitution against unlawful exercises of the pardon power. As a co-equal branch of government, Congress has an important role to play in preventing abuse of executive power through the pardon power. Congress should use its oversight authority to investigate potential improprieties and can use its power to impeach if it finds abuses of the pardon power.

I. The President May Not Use the Pardon Power to Violate Core Constitutional Rights or Undermine the Judiciary’s Role in Protecting Constitutional Rights

The Constitution assigns some powers to the president (including the pardon power) just like it assigns other powers to Congress and the courts. But the Constitution limits those powers in two key respects:

• Neither the president nor Congress may exercise the powers granted to them by the Constitution in any way that violates either the Bill of Rights or other constitutional amendments. For example, although the Constitution gives Congress the power to regulate interstate commerce (Article I, Section 8), Congress may not regulate commerce by prohibiting sales of certain newspapers because such a regulation would violate the First Amendment.
• The Constitution relies on a system that checks and balances the powers held between Congress, the executive branch, and the judiciary. When one branch uses its authority to check the powers of another branch, it must be done with thoughtful consideration of the impact that check will have on the ability of the other branch to exercise its power. For example, the pardon power in Article II explicitly prohibits pardons in cases of impeachment because impeachment is a power held by Congress.

A. The Equal Protection Clause through the Bill of Rights limits whom the president can pardon and on what basis he can decide to issue pardons.

The Equal Protection Clause provides a lens through which we can see how the Constitution’s pardon power is limited by its protection of individual rights.

• There is no reason for courts to treat differently the equal protection claims arising from pardons from other equal protection claims. For example, presidential pardons issued to all, and only, white people would flagrantly violate the equal protection rights of those excluded. As Justice Stevens once observed, “[N]o one would contend that a Governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency” because to do so would be to “ignore the commands of the Equal Protection Clause.” Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 292 (1998) (Stevens, J., concurring in part and dissenting in part). The constraint that the Equal Protection Clause has on a governor’s executive power is the same as on the president’s pardon power.

Similarly, the pardon power may not be used to disregard other constitutional rights. As one federal court put it, the pardon power is “limited, as are all powers conferred by the Constitution, by the Bill of Rights which expressly reserved to the ‘individual’ certain fundamental rights.” Hoffa v Saxbe, 378 F.Supp. 1221, 1231 (D.D.C. 1974).

• For example, the Supreme Court, over a century ago, explained that a presidential pardon cannot be used to abrogate a witness’s Fifth Amendment right against self-incrimination. In Burdick v. United States, 236 U.S. 79 (1915), newspaper editor George Burdick had invoked that right when refusing to testify to a federal grand jury investigating customs fraud. To compel Burdick’s testimony, President Wilson pardoned him, eliminating his risk of criminal exposure and thus nullifying his ability to invoke his right to remain silent. However, Burdick did not accept the pardon and the Supreme Court held that the Fifth Amendment constrained the effects of the pardon power. “It is to be borne in mind,” the Court wrote, “that the power of the President under the Constitution to grant pardons and the [Fifth Amendment] right of a witness must kept in accommodation. Both have sanction in the Constitution, and it should, therefore, be the anxiety of the law to preserve both, to leave to each its proper place.” Id. at 93-94.
• In Woodard, five justices rejected the view that the right to due process plays no role in pardon proceedings. Three agreed with Justice O’Connor that “some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” 523 U.S. at 289 (O’Connor, J., concurring in judgment, joined by Souter, Ginsberg, and Breyer, JJ.) (emphasis omitted). Justice Stevens added that due process cannot countenance pardon proceedings “infected by bribery, personal or political animosity, or the deliberate fabrication of false evidence[.]” Id. at 290-91 (Stevens, J., concurring in part and dissenting in part).
• These opinions led to holdings by other courts that (1) a state clemency process violated due process because it was infected by the state’s witness tampering, seeYoung v. Hayes, 218 F.3d 850 (8th Cir. 2000); (2) a state may have violated due process when it misled an applicant’s lawyer about the issues considered in clemency proceedings, see Wilson v. U.S. Dist. Court for N. Dist. of California, 161 F.3d 1185 (9th Cir. 1998); and (3) a state scheme for restoring felons’ voting rights violated the First Amendment by allowing decisions to be based on viewpoint discrimination, see Hand v. Scott, 285 F. Supp. 3d 1289 (N.D. Fla. 2018).

B. The Constitution’s system of checks and balances precludes pardons that prevent courts from protecting constitutional rights.

The federal courts have played a unique role in protecting individual constitutional rights by standing as a bulwark against the attacks of the political branches. As a result, allowing the pardon power to undermine the judiciary’s ability to protect individual constitutional rights is a serious threat to all Americans. One power that courts rely on to protect constitutional rights is the contempt power—the ability to punish those who violate court orders. A pardon may not be issued that undermines a court’s ability to use the contempt power to enforce its orders protecting constitutional rights.

• The Supreme Court has held that the judiciary’s role in our constitutional system hinges on the ability of courts to prosecute contempt independently—that is, without relying on the whims of the executive branch. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987). Specifically, the Supreme Court held that “[c]ourts cannot be at the mercy of another Branch in deciding whether [contempt] proceedings should be initiated.” at 796. “The ability to punish disobedience to judicial orders,” the court reasoned, “is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches. ‘If a party can make himself a judge of the validity of orders which have been issued, and by his own disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls “the judicial power of the United States” would be a mere mockery.’” Id. (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911)).
• The Court has made clear that the pardon power does not extend to pardoning contempt where doing so would interfere with a court’s ability to enforce the rights of a litigant. Ex parte Grossman, 267 U.S. 87, 121 (1925). (The Court in Grossman upheld the pardon of a contempt order for disobeying a regulatory injunction related to Prohibition—the case did not involve a contempt order arising out of a case protecting individual constitutional rights.)

II. The President May Not Use the Pardon Power to Place Himself Above the Law Through a Self-Pardon or Similarly Functioning Pardon of Associates

An additional and significant limitation on the pardon power flows from Article II itself—which ensures that the president carries out his office in service of the people, not as a monarch. Two provisions in Article II—the Take Care Clause and the Oath Clause—require the president to act in the public interest, binding him to exercise fiduciary duties of loyalty and care to the common good. Andrew Kent, Ethan J. Lieb & & Jed Handelsman Shugerman, ‘Faithful Execution’ and Article II, 132 Harv. L. Rev. (2019) (forthcoming), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3260593. These constitutional provisions reflect the central principle in our constitutional system that ours is “a government of laws, not of men,” and that nobody is above the law. Cooper v. Aaron, 358 U.S. 1, 23 (1958). The pardon power must be understood within the context of the other Article II powers and responsibilities the president is granted.

The president cannot issue a pardon that places himself above the law by making it impossible to prosecute him:

• The prohibition on self-pardon reflects the basic and historic principle that no person may be the judge in his own case. The Office of Legal Counsel (OLC), which sits in the Department of Justice and provides the president with opinions on executive actions, has concluded that the president cannot self-pardon. As part of the executive branch, the OLC is usually in favor of broad readings of executive power. But on the issue of self-pardons, in a 1974 opinion, written just three days before President Richard Nixon resigned, the head of the OLC wrote, “Under the fundamental rule that no one may be a judge in his own case,” the president cannot issue himself a pardon. Presidential or Legislative Pardon of the President, Op. OLC Supp. (Aug. 5, 1974), available athttps://www.justice.gov/file/20856/download. Unable to pardon himself, President Nixon resigned shortly after the issuance of this opinion, a decision that has been hailed as preventing the constitutional crisis that a self-pardon would create.
• A self-pardon would run afoul of the constitutional commands in the Take Care Clause and Oath Clause. As the Supreme Court explained in Biddle v. Perovich, 274 U.S. 480, 486 (1927), a pardon “is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” The Take Care Clause, which requires the president to “take Care that the Laws be faithfully executed,” bars the president from betraying the public good to serve his own interests—including through the pardon power. Kent et. al., Faithful Execution, supra. A self-pardon reflects no due consideration for the public welfare, only disregard for it. A self-pardon also violates the Take Care Clause because it exempts the president from the consequences our laws would otherwise impose. If the president can use the pardon power to protect himself from being held accountable for his actions through investigation or prosecution, it would effectively transform him into an authoritarian ruler, incapable of being limited by law or checks by other branches of government.

Just as the president cannot issue self-pardons, the president may not pardon others when such pardons are designed to achieve the same effect as a self-pardon—namely, to obstruct an investigation into himself (or his campaign or his businesses) and to immunize himself from liability.

• First, a presidential pardon (or promise to pardon) of associates, used to shield himself from legal exposure in an investigation in which he is implicated, would involve the same principles discussed above, and be unlawful for the same reasons that a direct self-pardon is unlawful.
• Second, using the pardon power to coerce a witness in an investigation that implicates the president would violate the anti-dispensation principle embedded in the Constitution’s Take Care Clause, which prohibits the president from selectively enforcing laws or authorizing violations of the law (i.e. “dispensing” of the law). By effectively suspending the law for the purpose of self-protection, the president would be excepting select people from accountability to the law. From our nation’s earliest days, the Supreme Court has read the Take Care Clause as a limit on presidential power, denying the president the power to “paralyze the administration of justice” by refusing to apply or obey the law. Courts are responsible for enforcing that duty.

III. The Pardon Power Is Constrained by Laws Prohibiting Bribery and Obstruction of Justice

The limitations on the pardon power described above all flow directly from the Constitution itself. But the Constitution also empowers Congress to enact federal laws—and unless otherwise specified, these laws apply to all Americans. Federal statutes can, and do, limit presidential powers. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Federal bribery laws apply to pardons and prohibit a pardon issued in exchange for a bribe.

• To protect the integrity and trust in public servants, federal law prohibits public servants from exchanging official acts for anything of value for themselves or family members. 18 U.S.C. § 201. Anti-corruption statutes criminalize inappropriate transactions involving official acts—and a pardon is a clear official act.
• When President Clinton pardoned Marc Rich in 2001 in what some saw as a quid pro quo for donations from Rich’s wife, federal prosecutors empaneled a grand jury and spent years investigating. As then-Senator Jeff Sessions said when he endorsed the investigation, “From what I’ve seen, based on the law of bribery in the United States, if a person takes a thing of value for himself or for another person that influences their decision in a matter of their official capacity, then that could be a criminal offense.” David Johnston, S. Is Beginning Criminal Inquiry in Pardon of Rich, N.Y. Times (Feb. 15, 2001), https://www.nytimes.com/2001/02/15/us/us-is-beginning-criminal-inquiry-in-pardon-of-rich.html. If the Marc Rich pardon had been found to be part of a quid pro quo, and the thing of value materially influenced President Clinton’s decision to issue the pardon, then the Rich pardon would have violated the bribery statute.
• If a president’s issuance of a pardon was found to be a bribe violating the bribery statute, it would also be unconstitutional. By using the office and powers of the president improperly, the president would violate both the Take Care Clause and the Oath Clause.

Federal laws against obstruction of justice make unlawful any pardon that is issued—or offered or promised—to impede an investigation.

• To guarantee a fair and independent criminal process, federal law prohibits hindering a criminal investigation “by means of bribery” or by “corruptly persuad[ing]” a witness, or potential witness, not to convey information about the commission of a federal offense. 18 U.S.C. §§ 1510, 1512.
• Federal obstruction laws, which bar corruptly-motivated actions, exist to ensure that those with access and power cannot evade accountability for their actions. Promising a pardon to prevent a witness from cooperating with an investigation would constitute obstruction of justice. A president can obstruct an investigation by shutting it down, ordering the destruction of documents, dangling pardons, or issuing pardons to induce witnesses to impede the investigation. The president cannot exempt himself from laws barring obstruction of justice. SeeLaw Professor Letter on President’s Article II Powers, Protect Democracy (June 4, 2018), available athttps://prodemocracy.wpengine.com/law-professor-article-ii/.

IV. Courts and Congress Must Uphold the Constitution Against Unlawful Pardons

A. Courts have the power to adjudicate whether pardons are valid and to void those that are not.

Since the nation’s earliest days, it has been the duty of the courts to interpret the Constitution and to say what the law is. As the branch of government that is entrusted to consider all cases arising under the Constitution, and to safeguard individual rights, the judiciary has a duty to ensure that the president’s pardons respect individuals’ constitutional rights and reflects the constitutional system of checks and balances.

• Courts can rule on the constitutionality of pardons when considering whether to grant relief based on pardons or when a victim comes before the court saying that a pardon infringes upon their rights. Courts opining on the validity of pardons will limit unconstitutional pardons, provide remedies to victims whose rights have been infringed upon, and provide case law to guide the president and potential pardon applicants.
• In addition, courts have an important role to play if abuse of the pardon power forms the basis for a criminal indictment. While a sitting president has never been indicted, there is no doubt that a president upon leaving office could face indictment for violating criminal laws; a person who offered a bribe or obstructed an investigation in connection with seeking a pardon could also be indicted. Courts have a role in holding the president accountable for abusing the pardon power.

B. Congress should use its authority to prevent the president’s abuse of the pardon power or to hold him accountable if he abuses the pardon power.

• Congress has extensive oversight tools to investigate wrongdoing by the executive branch. It should bring these to bear on abuses of the pardon power. In situations where it appears that a presidential pardon is unlawful—for any of the reasons described above—Congress should investigate. Congressional committees should request or subpoena documents and witness testimony to determine the context and intent behind issuance of particular pardons. Elected to represent the American people, Congress should publish public reports regarding whether the pardon power was abused. Indeed, Congress conducted extensive investigation into the Marc Rich pardon.
• As described above, Congress has also enacted laws of that prohibit official acts, which would include the issuance or offering of a pardon in exchange for a bribe, to impede an investigation, or to amper with a witness. If any uncertainty were to emerge whether these laws apply to the president, Congress could further clarify that they do. Congress could also preemptively revise the statutes to remove all doubt.
• Ultimately, if Congress identifies abuses of the pardon power, it may use its impeachment authorities to protect the Constitution. The pardon clause explicitly excludes pardons in cases of impeachment. There is no doubt that misuse of the pardon power—like other such abuses of official powers—can be a proper basis for impeachment. See, g., Impeachment, History, Art & Archives: U.S. House of Representatives, http://history.house.gov/Institution/Origins-Development/Impeachment/ (last visited Sept. 4, 2018). In our constitutional democracy, government officials work for the public and are constrained by the laws the public’s representatives enact. If Congress determines that a president is seeking to use the pardon power to serve his own private or personal interest, to undermine the public good, to circumvent the Constitution, or place himself above the law, then impeachment is a proper remedy.

Like every other power we entrust to our government, the pardon power has limits and must be read alongside the legal requirements that clarify those limits. The Constitution’s guarantees of individual rights and a faithful executive impose meaningful constraints on the pardon power that both Congress and the courts can—and should—enforce.

Ninth Circuit case:

• ECF No. 30 Amicus Brief opposing Arpaio’s request for rehearing en banc (filed June 22, 2018 on behalf of The Protect Democracy Project, Inc.; Free Speech for People; Coalition to Preserve, Protect and Defend; and Roderick and Solange MacArthur Justice
• ECF No. 64 Amicus Brief regarding Special Counsel and Affirmance (filed April 29, 2019 on behalf of The Protect Democracy Project, Inc.; Laurence H. Tribe; Martin H. Redish; Lawrence Friedman; William D. Rich; Citizens for Responsibility and Ethics in Washington; Coalition to Preserve, Protect and Defend; Free Speech for People; MoveOn; Roderick and Solange MacArthur Justice Center; and Republicans for the Rule of Law)
• ECF No. 65 Amicus Brief by certain members of Congress in support of neither party (filed April 29, 2019)

U.S. District Court case:

• ECF No. 228 Amicus Brief by Protect Democracy on the constitutionality of the pardon (filed in the U.S. District Court of Arizona on September 11, 2017)
• ECF No. 231 Supplemental Amicus Brief in support of appointing a private attorney to prosecute Arpaio’s criminal contempt (filed in the U.S. District Court of Arizona on September 11, 2017 on behalf of The Protect Democracy Project, Inc.; Martin Redish; Free Speech for People; Coalition to Preserve, Protect and Defend; and Roderick and Solange MacArthur Justice Center)