Using the pardon power to encourage law breaking

Arizona ex-Sherriff Joe Arpaio, who violated a criminal contempt of court order to stop racial profiling that violated Americans’ constitutional rights, recently announced that he may run for his old position next year in Arizona. He is eligible to run only because President Trump pardoned him for his crime of violating a court order that he follow the law.

We each testified before the House Judiciary Committee about the scope of the pardon power in the Constitution. While one of us was invited by the committee’s Democratic majority and the other by the Republican minority, it turned out that we agreed about almost everything. In particular, each of us testified that the pardon power is broad and serves important purposes in the Constitution—but we can’t allow it to be used to license future law-breaking.

The Framers of the Constitution gave the president the pardon power for good reasons. Alexander Hamilton argued that any system of justice might impose overly harsh punishments and that pardons are a way to temper justice with mercy for individuals. For example, President Trump’s pardon of Alice Marie Johnson served this noble aim. But we are concerned that President Trump may also be using his pardon power in ways that threaten the rule of law.

The text of the Pardon Clause in the Constitution provides no explicit limits on pardons for crimes against the United States, except that they may not be used to affect impeachments. However, reading the Constitution as a whole, there are limits on how the president exercises all of his powers. For example, the Take Care Clause requires that the president “take Care that the Laws be faithfully executed”—commanding him to uphold the law in good faith and prohibiting him from licensing law-breaking. What are the limits to the pardon power?

During debates over the ratification of the Constitution, George Mason argued that a president might abuse the pardon power. The president “may frequently pardon crimes which were advised by himself…. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” We believe the answer should be no. This is why we agree that a self-pardon would be an abuse of the pardon power.

The reason, as George Mason warned, is that such a pardon—for example, one that blocks an investigation—would place the president or his allies above the law by allowing them to break the law with impunity (without “inquiry” or “detection”).

Unfortunately, President Trump has in some situations used the pardon power to undermine the rule of law in just this way. The Supreme Court has made it clear that, though pardons can be granted before indictment or conviction, the president cannot pardon crimes that have not yet been committed; doing so would license law-breaking in violation of the Take Care Clause. However, in the warrant to pardon Arpaio, President Trump included language purporting to pardon future criminal conduct by Arpaio. The pardon document states that the pardon is for “any other” criminal contempt “that might arise, or be charged in connection with” the underlying case. This pardon sends the message that in the future law enforcement officials can ignore court orders or violate people’s constitutional rights with impunity.

Trump also has attempted to use his pardon power to affect future testimony in the Mueller investigation by discussing potential pardons with witnesses. The Mueller report noted that “Michael Cohen discussed pardons with the President’s personal counsel” and “used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.” [Vol. II, p. 134] This is an improper use of the pardon power, as the Mueller report explained, because it “include[s] the offer or promise of a pardon to induce a person to testify falsely or not to testify at all.” This dangling of a pardon for Cohen is similar to the Arpaio pardon because it encouraged somebody to commit a crime (providing false testimony) in the future.

The president also dangled a pardon for Paul Manafort. As Special Counsel Mueller reported, “The President and his personal counsel made repeated statements suggesting that a pardon was a possibility for Manafort, while also making it clear that the President did not want Manafort to ‘flip’ and cooperate with the government.” [Vol. II, p. 131] The pardon dangles to Cohen and Manafort were clearly intended to shape their conduct in the future and encourage them to provide false testimony or otherwise obstruct justice.

More recently, Trump pardoned former Army Lt. Michael Behenna, who had been convicted of murdering a detainee when he was serving in Iraq. Trump also indicated that he was considering pardons for other soldiers being investigated for war crimes. In addition to undermining military discipline and the Uniform Code of Military Justice, such actions send a message that future war crimes are acceptable. Coupled with Trump’s statements telling the acting secretary of Homeland Security that he would pardon him for breaking the law in the context of immigration enforcement, these pardons and considerations of pardons illustrate how the president is trying to encourage unlawful conduct by public officials.

Using the pardon power to encourage future law-breaking is inconsistent with the Framers’ purpose for the pardon power, which was to ensure an avenue for mercy and justice. This is a noble purpose and we should protect it from being tainted. Fortunately, the Constitution also requires the president to use all of the powers of his office, including the pardon power, to uphold the Constitution and the law. President Trump raised his right hand and swore an oath to abide by this duty. It’s up to all of us to make sure that he does.

James Pfiffner is Professor of Public Policy at George Mason University. Justin Florence is Legal Director at Protect Democracy.