by Harry Litman
Anticipating President Donald Trump’s likely end-of-term pardon spree, many commentators have suggested that given the breadth of the pardon power as set out in the Constitution, it would be lawful — if galling — for the president to issue proclamations that let his family off the hook for any and all federal offenses committed during his administration.
But it’s not so simple. A stronger case can be made that Trump cannot constitutionally wipe the slate clean for his kids.
Start with a point that everyone this side of Rudy Giuliani would acknowledge. Despite the Constitution’s categorical wording — it sweepingly authorizes the president to “grant Reprieves and Pardons for Offenses against the United States” — not everything goes. The pardon authority can’t be construed to allow a president to commit a crime or to violate constitutional principles in exercising it. He or she couldn’t decide, for instance, that only members of a particular racial group could be pardoned or begin selling reprieves to the highest bidder.
And as I and others have argued, the pardon authority also doesn’t extend to self-pardon. The Department of Justice’s Office of Legal Counsel determined as much in 1974, when there was concern that President Richard Nixon might try to pardon himself during the Watergate scandal. The OLC concluded that self-pardon would violate a crucial principle of Anglo-American law embedded in the Constitution — namely, that nobody may be a judge in his own cause. If it were otherwise, presidents could place themselves above the law.
This principle clearly applies to a pardon of Trump’s own family as well. The contemplated pardon of Ivanka Trump, her husband, Jared Kushner, and Donald Trump Jr., whose fates are bound up in the family fortune, is at most, a slightly diluted version of the no-self-dealing principle that drove the legal counsel’s opinion in 1974.
It’s true that President Clinton pardoned his half brother, Roger Clinton Jr., for a drug possession and trafficking conviction — a highly controversial move at the time, and possibly improper. But the Clinton pardon was far less problematic than the contemplated Trump family pardons. Roger had served his sentence, shown remorse and returned to some semblance of a productive life.
Under Justice Department guidelines, such factors are prerequisites for a presidential pardon. Of course, Trump has routinely ignored some or all of those guidelines in granting pardons and commutations, notably for former national security advisor Michael Flynn, Arizona’s Sheriff Joe Arpaio and campaign crony Roger Stone.
The Clinton pardon raises another fundamental problem with Trump’s family-and-friends approach to clemency. Pardons are designed as mercy for particular offenses. They run to crimes (Roger’s drug offenses), not persons (Roger himself).
And yet, Trump’s children have not been charged or found guilty of any crime against the United States. This is not a mere technical glitch. Pardon requirements such as remorse and acceptance of punishment make sense primarily in the context of specific offenses. William Blackstone, the 18th century British jurist whose commentaries on English common law inspired the founders, explains it this way: “A pardon of all felonies will not pardon a conviction.” The offense “must be particularly mentioned.”
In the annals of the U.S., there is a famous exception to the crimes-not-persons principle — President Ford’s pardon of Richard Nixon. Ford’s act was even more controversial than the Clinton pardon, and it may have cost him the 1976 election. Some have referenced it as a potential justification for the general family pardons Trump seems to be contemplating, but it is not clear that it established a legal precedent. After all, it was never reviewed by the courts. It did at least have an important public purpose and one that clearly motivated Ford: It brought about an end, in his words, to the “long national nightmare” of Watergate.
Trump’s signature characteristic as president has been his consummate indifference to public purpose. So it is with his pardons, which he deploys for private gain — a shield for his cronies, himself and possibly his children. They are a poke in the eye to the rule of law, without the pretense of achieving the broader aims that executive mercy should serve. A sound reading of the pardon power does not support blanket get-out-of-jail-free cards for the Trump kids.
Harry Litman is a former U.S. attorney and the host of the podcast “Talking Feds.” Twitter: @HarryLitman
