Earlier this week, President Donald Trump made a startling declaration. “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself,” the president tweeted.
It’s true that much of the discussion around the legality of self-interested presidential pardons has either implicitly assumed—or outright asserted—that any limit on the president’s pardon power raises purely political questions to be decided by Congress—potentially via impeachment—rather than potential legal questions to be decided by the courts. It’s somewhat ironic, then, that the 150-year-old case frequently quoted as the definitive authority for the president’s unfettered prerogative to pardon, Ex Parte Garland, shows that, at least in some circumstances, the limit of the pardon power can be a legal question.
The Supreme Court in Garland parted company 5–4 on the merits but was unanimous concerning its authority to interpret the scope of the pardon power. The specific question in the Reconstruction-era case was whether requiring a loyalty oath disclaiming past treasonous conduct as a condition for practicing law in federal court was inconsistent with the relief provided by a presidential pardon for that conduct. The court said yes.
How might that relate to today’s situation? Suppose that President Trump fires Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller, orders the Russia conspiracy investigation closed, and then pardons himself and anyone associated with his campaign from any potential criminal liability, including obstruction of justice. Suppose further that an indictment nonetheless occurred. For the purpose of this hypothetical, let’s work around the fact that the Department of Justice has a not yet Constitutionally tested policy that a sitting president can’t be indicted. Let’s say, for example, that an indictment perfectly in compliance with that policy was issued under seal to be released the date that Trump is no longer in office. Or, let’s go so far as to say that the second Trump departs from office, the U.S. attorney in Manhattan ignores the pardon and issues an indictment against Trump for conspiracy to commit bank fraud related to the Stormy Daniels payment, and the U.S. attorney in Washington issues a an indictment for obstruction of justice related to attempts to block the investigations of Russian interference in the 2016 election. Trump—no longer president—would presumably move to dismiss the indictments on the ground that he couldn’t be prosecuted for any crime for which he had already pardoned himself.
In this case, the Supreme Court would have to decide anew—as it decided in Garland—a fundamental question about the scope of the pardon power. Here, that question would be whether immunity from prosecution for a scheme to obstruct justice using the pardon power as the instrument to obstruct is consistent with the relief given by the corrupt pardon itself. Again, at first blush, this seems like a paradigmatic political question—that’s what we have impeachment for. And to be sure, nothing would stop the House of Representatives from impeaching the president for abusing the pardon power, the very remedy many framers anticipated should that particular abuse arise. But Garland makes clear that the scope of the pardon power can also present a legal question. It would then be up to the current Supreme Court—one that presumably adheres to the view that no one is above the law—to ultimately decide whether to allow the prosecutions to proceed, or to permit the president to have used the pardon power in a way that facilitates one or more crimes.
Again, the specifics of the Garland case may be instructive here. Augustus Garland was an Arkansas lawyer initially admitted to practice before the United States Supreme Court in 1860, when he was 28. Then, as now, the court imposed two qualifications, one of competence and one of character. An applicant showed competence by establishing a certain number of years as a member in good standing of the bar in his home state court. He showed character through the attestation of a Supreme Court bar member.
In March 1865, Congress imposed an additional qualification—attorneys wanting to practice before the federal courts had to take an oath not only that they would prospectively defend the Constitution, but also they had not in the past aided the enemies of the United States. A false oath was punishable as perjury. The Supreme Court changed its admissions rules to incorporate the loyalty oath. This was obviously meant to prevent supporters of the Confederacy from appearing before the court.
This was a problem for Garland, a citizen of Arkansas. In 1861, Arkansas seceded from the Union, and Garland joined the Confederate government, serving in the legislature.
Enter President Andrew Johnson, who in 1865 gave Garland a full pardon “for all offenses by him committed, arising from participation, direct or implied, in the Rebellion.” There was no dispute that the pardon absolutely insulated Garland from being prosecuted for his past treason, but Garland wanted more—he wanted to be able to practice law in the federal courts. (And Garland really liked practicing in federal court. He is said to have died in 1899 shortly after suffering a stroke while delivering a Supreme Court argument.)
The court held that by requiring the loyalty oath, Congress had improperly sought to restrict the president’s pardon power. Writing in sweeping language, the court characterized the pardon power as “unlimited,” excepting only cases of impeachment. The power extended “to every offen[s]e known to law” and was “not subject to legislative control.” By trying to exclude Garland from practicing law in federal court “by reason of” his prior treason, Congress (and through its rule, the court) had attempted to bar him from “continuing in the enjoyment of a previously acquired right,” and this in turn was “to enforce a punishment for that offense notwithstanding the pardon.” That Garland had actively sought to destroy the United States couldn’t be allowed to cloud the court’s view of his character in light of the sweeping power of the pardon.
The four-justice dissent was unsparing. It belittled the majority’s conclusion that Garland had been punished at all. And since all a pardon could do was to relieve a party from criminal punishment, “[i]f the oath required as a condition to practi[c]ing law is not a punishment, … then the pardon of the President has no effect in releasing him from the requirement to take it.”
Garland’s facts differ from the Trump hypothetical in two respects, but neither is material. Setting the qualifications to practice law is a quintessentially judicial function, and Garland arguably sought a benefit—being able to practice. In contrast, President Trump and his fellow pardon recipients would be seeking relief from a burden (potential criminal liability), the very thing that pardons are supposed to accomplish. But the question in Garland was not framed as one of moral character or receipt of a potential benefit; it was framed as one of punishment. And the court was clear that it had the authority to determine whether an act of Congress (there, requiring a loyalty oath) was inconsistent with the pardon. Here, the question would be whether the president could be held criminally liable for violating generally applicable obstruction and bank fraud statutes by using a pardon. The Garland ruling teaches that the court should provide the answer. While the Garland court’s description of the pardon power as absolute may bode well for the president, the current Supreme Court should at least have the chance to conclude that it is not an improper “punishment”—and therefore not an improper restriction on the pardon power—to preclude the president from using a pardon as a way of committing bank fraud or obstructing justice.
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