Sweeping and self-pardons may not stand up to legal challenges and state courts remain unfettered.
With less than a month remaining in office, Donald Trump is increasingly turning to the most monarchical and unchecked of presidential prerogatives: the pardon power.
He has already pushed the limits of that entitlement, treating it in a far more personalised, partisan and ideological manner than any of his predecessors. But additional political assumptions and constitutional questions may be tested as he moves to pardon more allies, family members and possibly even himself.
The British monarch’s pardon power was one of the few aspects of royal governance that the founders of the American constitutional republic wanted to retain. They saw it as a final recourse of grace and forgiveness that could help protect the ideal of justice tempered with mercy beyond the rigid requirements of the law.
The Constitution treats presidential powers as a kind of fiduciary responsibility and assumes the president will at least try to act in the public interest in all things, including pardons. More than any of his predecessors, Mr Trump is disregarding that standard.
Such deviations aren’t unknown. Gerald Ford’s pardon of Richard Nixon and George HW Bush’s of several Iran-Contra scandal convicts were plainly political. And Bill Clinton pardoned his half-brother, a crony and a major donor.
But, in each case, those were exceptions.
Mr Trump, by contrast, has primarily deployed the pardon power in a self-serving manner. Legal scholars estimate that 60 of his 65 pardons have had clear personal or political motivations, as opposed to any disinterested concern about justice or mercy.
The last two batches in recent days were particularly disturbing. In an obvious effort to rebuke former special counsel Robert Mueller and discredit his 2016 election interference investigation, which Mr Trump derides as a “hoax” but which secured numerous guilty pleas and convictions, pardons have been issued to major and minor players alike.
They include his former national security adviser Michael Flynn, campaign manager Paul Manafort and several lesser figures. Of course, everyone who cooperated with the authorities, such as his former attorney Michael Cohen, has been ignored.
He has also pardoned several corrupt Republican politicians who were his ardent supporters, and his daughter’s father-in-law, Charles Kushner. Ivanka Trump’s children will have the unique distinction of one grandfather pardoning the other.
In none of those egregious cases is there any contrition, rehabilitation or evident mitigation beyond the President’s political or personal concerns. Former adviser Steve Bannon, accused of bilking gullible contributors to a phony border wall fund, could be next.
Perhaps most damaging to the national interest are pardons for four Blackwater mercenaries who committed a wanton 2007 massacre of innocent Iraqi civilians, killing at least 17 including several children. Blackwater was headed by one of the President’s close political allies, Erik Prince, brother of Education Secretary Betsy DeVos.
Mr Trump and his far-right base have a habit of embracing controversial figures charged with brutality in international conflicts. In November 2019, he infuriated the military by intervening on behalf of Eddie Gallagher, a Navy Seal charged with heinous abuses in Afghanistan.
In addition to outraging the memories of the victims and sabotaging efforts to enforce basic conduct standards for US operatives abroad, the Blackwater pardons are detrimental to US foreign policy. As pro-Iranian militias are attacking US interests in an avowed effort to drive the American military out of Iraq, they could put US personnel at risk by providing additional rationalisations for anti-American attacks.
Mr Trump is reveling in this final burst of unchecked authority and reportedly plans many more pardons, although it is a clear admission that he will be leaving office soon.
While he obviously relishes the near-absolute nature of the power, his expansive plans may reveal some unprecedented complications regarding pardons.
Nixon’s pardon was prospective, issued before any possible criminal charges, as well as sweeping and unspecified. While prospective pardons are probably valid, blanket “get-out-of-jail-free for anything you may have ever done” indemnifications are likely not.
The framers of the US Constitution, drawing on their British model, would have expected valid, enforceable pardons to refer to specific offenses.
Nixon was pardoned “for all [federal] offenses” during his time in office. That was never tested because he was never indicted. But if Mr Trump tried to issue such blanket clemency to his attorney Rudy Giuliani, some other ally, or his children, it could well be tested and prove unenforceable.
Such friends and relatives would also undergo the social and political stigma that can and should be attached to pardons, which do not wipe away the reality or guilt of an offense.
The Supreme Court has held that presidential pardons must be based on an assumption of criminal guilt, while accepting one communicates an admission of guilt. Among Ford’s main justifications for pardoning Nixon was that it definitively established his responsibility, and his admission of culpability (certainly for obstruction of justice), forestalling any further controversy.
Courts and the public have every right to know what crime is being pardoned. Yet there is no evident requirement for presidential pardons to be publicized, so theoretically they could be, in effect, secret until the recipient is indicted.
Mr Trump has claimed he has “the absolute right” to pardon himself, but that is extremely unlikely. No president has ever tried this, but since it would place a president literally above the law, it is almost certainly not constitutional. This incongruous possibility goes unmentioned in the Constitution, but it is referred to as a “grant”, which suggests a gift to someone else.
Even if Mr Trump were to successfully pardon his associates, and even himself, there is an additional wrinkle completely beyond his influence.
Presidential pardons only apply to federal offense. They do nothing to protect against prosecutions by state authorities, in this case mainly New York State.
Any criminal defendant would prefer trial in a New York State court than much stricter federal courts, but presidential pardons would not indemnify Mr Giuliani, the Trump family or the President himself from potential liability on state charges.
Should all else fail, federalism ensures that no one is truly above the law in the United States.