The week since the release of special counsel Robert Mueller’s report has felt like a whirlwind, with Congress considering how next to approach the unresolved questions raised about the conduct of Donald Trump and his administration, and the nation bracing for a potentially historic subpoena fight. At the same time, news around the Mueller report has overtaken news of another possible abuse of power by this president—allegations that Trump promised to pardon an official if he broke the law at the president’s request. While the episode has been written off by some as a joke, it is no such thing: Congress has an obligation to investigate these allegations as much as anything in the Mueller report.
The episode in question came to light earlier this month, when CNN reported that Trump had told Kevin McAleenan, who at the time was commissioner of Customs and Border Protection, that “he would grant [McAleenan] a pardon if he were sent to jail for having border agents block asylum seekers from entering the US in defiance of US law.” CNN cited “two officials briefed on the exchange” who thought it “not clear if the comment was a joke.” The New York Times, citing “three people briefed about the conversation,” reported that “it was possible Mr. Trump had intended the comments to McAleenan as a joke.” The Department of Homeland Security denied the story, as did press secretary Sarah Huckabee Sanders and the president himself—in a tweet. Since the events in question, McAleenan has been promoted to acting secretary of Homeland Security.
The Atlantic ended its story on the CNN report with an important question about such a presidential promise: “What would it mean for the rule of law in the United States if officials listened?” Whether or not they listened, it is a serious matter. The president has no authority to induce underlings to break the law with the promise of a preemptive pardon.
To be clear, there is no question that the constitutional pardon power is broad. It covers all federal crimes, both civilian and military, committed by individuals dead and alive—although it doesn’t cover state crimes, and it is generally understood that a president cannot pardon himself.
A pardon need not even identify the crime being pardoned. Gerald Ford’s pardon of Richard Nixon, certainly the broadest in American history, extended to “all offenses against the United States which he … has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974.” While Nixon’s pardoned crimes were only vaguely described, the final day on which they could have been committed was the day he resigned from office, more than a year before the pardon was granted.
Crucially, the very terms of the Nixon pardon make clear that it applied only to criminal conduct that had already taken place. Most of the controversy at the time involved whether the president could pardon a crime before conviction, but it is now generally understood that the president may issue preemptive pardons—that is, pardons before there has been a conviction, or even an indictment.
There are many examples of this, from George Washington’s 1795 “general pardon” of participants in the Whiskey Rebellion, to Benjamin Harrison’s 1893 pardon of Mormons living in unlawful polygamy, Jimmy Carter’s 1977 pardon of Vietnam draft-resisters who fled to Canada, and George H.W. Bush’s 1992 pardon of former government officials who had been indicted in the Iran-Contra affair. As the Supreme Court stated in an 1866 case involving a post–Civil War pardon, the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.” (Emphasis added.)
As implied by this precedent, though, granting a pardon before a crime has been prosecuted is a far cry from promising one before a crime has even occurred. In the case at hand, the promise of a pardon in the event of some future criminal act certainly sounds like it might itself be a crime, but it is at least an abuse of presidential power to offer an inducement to break the law.
A pardon granted before a crime has been committed is reminiscent of the British monarchs’ long-abolished power of dispensation, which was frequently used in the Middle Ages, and is described by one authoritative text on English constitutional law as “an anticipatory exercise of the undoubted right of the king to pardon individual offenders.” It was abolished in 1689 when Parliament, in the English Bill of Rights, declared illegal “the pretended power of dispensing of laws or the execution of laws by regall authoritie.”
Some might argue that an anticipatory pardon is no different from the thoroughly uncontroversial exercise of prosecutorial discretion, or the setting of standards for deciding when cases will be pursued and when they will not. The analogy doesn’t work because a pardon binds all subsequent administrations, while a decision not to prosecute does not even bind the administration that makes it. A pardon, in other words, is forever—and goes way beyond merely prioritizing the use of limited prosecutorial resources. In any event, Trump’s offer, as reported, in no way resembles prosecutorial forbearance.
Congress needs to determine whether Trump said what CNN and the New York Times reported. If he did, it was no joke.
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