Pardon power is not meant for securing bribes

It’s sometimes hard to believe that we have reached a point in American politics where it’s necessary to state the obvious: It’s not okay for presidents to break the law, to ask others to break the law, or to promise pardons in exchange for government workers’ agreement to break the law. 

When the law is broken, people get hurt. The people we are talking about here are those with personal property along the southern border who — if reports are accurate — would have it stolen by the U.S. government so that President Trump can build his elusive wall and thereby increase his chances of retaining power in November 2020. 

Thankfully, so far, this is not another instance in which Congress is sitting on its hands and doing nothing about the possibility of an epic constitutional monstrosity. On Wednesday, the House Judiciary Committee subpoenaed the Department of Homeland Security for documents relating to any pardon offers. 

The White House claims that Trump was joking when he reportedly encouraged officials at the DHS to break laws that stand in the way of his immigration agenda because — not to worry — he’d pardon them later. Trump’s incitement of lawlessness reportedly included asking acting DHS Secretary Kevin McAleenan to deny migrants their legal right to petition for asylum, and suggesting that aides violate environmental and eminent domain restrictions in order to push forward on his promised wall at the Southern border. 

Let’s be clear: Under federal law, a bribe is the offering, giving, receiving or soliciting of any item of value in order to influence the actions of an individual holding a public or legal duty. Merely asking for a bribe counts — it need not actually occur for the act to be a crime. The reason behind laws banning bribery is that we want government officials to exercise their extraordinary powers objectively and in the public interest — not for their own private gain.

Which brings us to the pardon power. Only the president has it, and it’s expansive — despite being confined to only federal laws, not state laws.

As the Supreme Court has explained, a “pardon reaches both the punishment prescribed for the offence and the guilty of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilty, so that in the eye of the law the offender is as innocent as if he had never committed the offense.”

In all likelihood, then, a pardon is an “item of value” within the meaning of the bribery laws. According to the Supreme Court, if granted before a conviction, it prevents “the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.”

To be sure, the Constitution states that “the President shall have Power” to grant pardons. But it’s wrong to suggest that the pardon power is absolute. No power is absolute under the Constitution. A president could not pardon every white person convicted of a federal crime — that would violate the Equal Protection Clause of the Constitution, for starters. If things are working correctly in American democracy, all power under the Constitution is — and should be — checked for abuses.

The pardon power has its roots in historical England. It was originally used by monarchs to lift draconian death sentences. The so-called “royal prerogative of mercy” was absolute and unique to the Crown, as the law presumed that medieval kings could “do no wrong.”

Today, however, the use of the royal prerogative in the United Kingdom is “subject to the common law duties of fairness and reason.” It can be abolished by statute or challenged in court. Likewise, for purposes of U.S. law, the Supreme Court in Schick v. Reed observed in 1974 that pardons are only acceptable under “conditions which do not themselves offend the Constitution.”

A sitting president’s solicitation of bribes to aid his reelection efforts offends the Constitution.

These days, even mentioning the Constitution in connection with Trump can prompt howls of bias — as if fidelity to the Constitution itself is somehow “anti-Trump.” But the Constitution exists to ensure that the office of the presidency remains accountable, regardless of the current occupant.

As George Mason warned at the constitutional convention in 1787, the pardon power “may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit a crime.” Unlike the constitutional power to appoint and remove federal officers, the pardon power offers no presidential end run around the bribery statute. In short, there’s no viable argument that bribery falls within the scope of president’s constitutional powers to pardon. 

The president is constitutionally authorized to issue pardons as a measure of mercy — or to pacify civil strife. In the words of one Canadian judge, pardons make sense “in cases where the law failed to reflect understandable human frailties.” Abusing one’s office to further entrench power is not one of them.

Kim Wehle is a former assistant U.S. attorney and a former associate independent counsel in the Whitewater investigation. Wehle is also a professor at the University of Baltimore School of Law. She is the author of “How to Read the Constitution and—Why.” Her next book, “What You Need to Know About Voting—and Why,” is forthcoming with HarperCollins in July 2020. Follow her on Twitter @kim_wehle. 

This is the 10th piece in a series by Wehle on understanding the Constitution. Read her analysis on constitutional literacy, constitutional rights, the country’s crisis of compassion, war power, the Supreme Court, presidential power, the presumption of innocence, the power of regulations and role of independent agencies.