Should the U.S. get rid of presidential pardons? | The Tylt
Robert Mueller's investigation into possible collusion between the Trump campaign and Russia during the 2016 election appears to be winding down. Erstwhile Trump lawyer Michael Cohen pleaded guilty in a New York court to working with Russians on a deal to build Trump Tower Moscow. Paul Manafort, Trump's former campaign chairman, was convicted of numerous federal crimes and sentenced to seven years in prison. Trump has suggested he would be open to pardoning Manafort, but should he really have that power?
Should the U.S. get rid of presidential pardons?
Presidents enjoy almost entirely unfettered abilities to pardon anyone who has been charged or accused of federal crimes. As Vox explains, the Supreme Court codified the issue in the 1866 case of Ex parte Garland.
“By the second section of the second article of the Constitution, power is given to the President ‘to grant reprieves and pardons for offences against the United States, except in cases of impeachment,’” Justice Stephen Field wrote. “With that exception the power is unlimited. It extends to every offence, and is intended to relieve the party who may have committed it or who may be charged with its commission, from all the punishments of every description that the law, at the time of the pardon, imposes.”
A prime example of the use of the presidential pardon is Gerald Ford's preemptive pardoning of Richard Nixon upon taking office. Nixon had not been charged with any crime and would likely not be charged for several more months. Ford felt it important for the nation to move past the Watergate Scandal and pardoned Nixon of all crimes he may have committed.
Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant 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.
Ford sets a potentially dangerous precedent in our current era. As Vox explains, it's entirely possible for President Trump to preemptively pardon any of his aides.
Trump could, similarly, offer any number of his aides “a full, free, and absolute pardon … for all offenses against the United States … [they] committed or may have committed or taken part in during the period from January 1, 2016 through July 21, 2017,” or earlier or later, as he sees fit.
These aides could then refuse to answer any questions about potential Russian collusion.
Just because a presidential pardon may be unjust, it is not criminal. Vox explains that even if the president pardons one of his associates, like Paul Manafort, in an attempt to encourage an aide to remain quiet on potential collusion, that is still within his right.
The reason to dangle a pardon before Paul Manafort is obvious: He’s clearly guilty of serious financial crimes, in major legal trouble because of his guilt, and is also in a position to offer damaging testimony against members of Trump’s inner circle. Trump, however, is in a position to get Manafort off the hook legally if Manafort agrees to protect him, his family, and his associates.
That would be a straightforward transaction, and the US Constitution is clear that Trump has the legal authority to do it.
...But there is no legitimate purpose for pardoning Manafort, who is simply guilty of crimes and facing the normal punishment for them laid out in law. There are no mitigating circumstances here or a reasonable argument for showing unusual leniency. There’s simply the fact that Manafort is in a position to do Trump a favor, so Trump might do him a favor. This is not a legitimate use of the pardon power, any more than selectively shielding associates from legal scrutiny is a legitimate use of the power to fire executive branch appointees.
However, if the president does pardon his aides, they could lose their Fifth Amendment right against self-incrimination. Vox explains:
If Trump does pardon people, those people could then be asked to testify under oath, either by Mueller’s team or by Congress. Pre-pardon, they could have pleaded the Fifth, refusing to answer on certain issues on the grounds that they might incriminate themselves. But if they’ve been pardoned already for those matters, they’re no longer at risk of incriminating themselves — so they’d have to testify truthfully, or risk new charges for contempt or lying under oath.
You see the problem: If somebody takes a pardon to avoid telling prosecutors what they know about Trump, that person could later be compelled to ... tell prosecutors what they know about Trump.
The loss of the ability to plead the Fifth could provide a check to Trump's pardoning powers.
Additionally, presidential pardons only extend as far as federal crimes. A person can still be charged and convicted of crimes by individual states. New York state has set itself up as an unofficial check on president pardoning power.
Before his resignation, following the allegations of physical abuse from four different women, New York Attorney General Eric Schneiderman wrote a letter to Gov. Andrew Cuomo arguing that trying someone for state crimes, when they have been pardoned by the president for similar federal crimes, does not constitute double jeopardy. Per the Atlantic:
He acknowledges the importance of protections, but writes that “recent reports indicate that the President may be considering issuing pardons that may impede criminal investigations.” He continues, “New York’s statutory protections could result in the unintended and unjust consequence of insulating someone pardoned for serious federal crimes from subsequent prosecution for state crimes—even if that person was never tried or convicted in federal court, and never served a single day in federal prison.”
...“Simply put, a defendant pardoned by the President for a serious federal crime could be freed from all accountability under federal and state criminal law, even though the President has no authority under the U.S. Constitution to pardon state crimes,” Schneiderman wrote.
Therefore, there are some checks on this particular presidential power.
After Manafort was convicted of federal crimes and sentenced to roughly seven years in prison, New York state attorneys quickly promptly charged him with over a dozen state felonies.
News of the indictment came shortly after Mr. Manafort was sentenced to his second federal prison term in two weeks; he now faces a combined sentence of more than seven years for tax and bank fraud and conspiracy in two related cases brought by the special counsel, Robert S. Mueller III.
The president has broad power to issue pardons for federal crimes, but has no such authority in state cases.
While Mr. Trump has not said he intends to pardon his former campaign chairman, he has often spoken of his power to pardon and has defended Mr. Manafort on a number of occasions, calling him a “brave man.”