President Donald J. Trump and the Potential Abuse of the Pardon Power

By Johnson, Scott P. | Faulkner Law Review, Spring 2018 | Go to article overview

President Donald J. Trump and the Potential Abuse of the Pardon Power


Johnson, Scott P., Faulkner Law Review


I. INTRODUCTION

President Donald Trump's pardon of Sheriff Joseph Arpaio of Maricopa County, Arizona on August 25, 2017, as well as his pardon of I. Lewis "Scooter" Libby Jr. on April 13, 2018, raises concerns about President Trump's potential abuse of the pardon power during the remainder of his term. (1) In fact, there are indications he is considering the use of the pardon power to protect his aides, family, and perhaps even himself, creating an environment where the public must be concerned about the possibility of a president using the constitutional pardon power to cover up his improper behavior. (2) The claims that President Trump and members of his presidential campaign allegedly colluded with the Russian government to influence the 2016 presidential election create the real possibility that Trump might use the pardon power to subvert any investigation. (3) Although most media attention in the aftermath of the election focused on discovering a connection between Trump's campaign and Russian intelligence agencies, (4) the events underlying the investigation by Special Counsel Robert Mueller III and various congressional committees also raise important issues about the exercise of presidential power under the United States Constitution. (5)

The presidential pardon power is a significant grant of authority that could be used in a self-interested manner by an executive to shield criminal or unethical activities from public scrutiny. (6) In fact, the Framers of the Constitution voiced concerns about the potential use of the pardon power to conceal criminal activities related to the President. (7) The participants in the Philadelphia Constitutional Convention of 1787 incorporated the pardon power in the Constitution based upon the assumption that a president would not violate the law. (8) With the advantage of hindsight, Americans in the twenty-first century have reason to question the validity of the Framers' beliefs regarding presidential behavior.

The pardon of Richard M. Nixon for any criminal misconduct by President Gerald Ford in 1974 provided the most obvious example negating the Framers' assumption about the law-abiding behavior of a president. (9) While many believe partisan interest to be the basis of Ford's pardon of Nixon, (10) more recent scandals demonstrate how self-interest might also motivate a presidential pardon. (11) In particular, the questions raised by President George H. W. Bush's timely pardons of several key Iran-Contra figures, (12) and the investigation of President William Clinton by independent counsel Kenneth Starr, (13) provide examples where the pardon power may have been used for personal protection. As noted above, President Trump reportedly has considered using the pardon power to protect officials connected to his presidential election campaign as well as individuals currently serving within his administration. (14) The presidential scandals of the modern era thus present an appropriate setting for reexamining the pardon power. (15)

II. THE CONSTITUTIONAL HISTORY OF THE PARDON POWER

The United States Constitution bestows upon the President the "Power to grant Reprieves and Pardons for Offenses against the United States except in Cases of Impeachment." (16) While the pardon power is regarded as a lesser known check against the federal judiciary in the American system of checks and balances, the Framers justified granting the President this power as necessary to suppress potential rebellions. (17) However, Blackstone warned that "[i]n democracies... this power of pardon can never subsist." (18)

Specifically, the pardon power is listed in Article II of the U. S. Constitution and has few limitations. (19) The power can be exercised only for individuals who have violated federal law (20) and a person can even refuse to accept a pardon. (21) As noted in Article II, it also cannot be used in cases of impeachment. (22) Scholars have concluded that the impeachment portion of the pardon clause means that a president cannot overturn an impeachment conviction. …

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