The writer is professor of constitutional law at Harvard
If, as Alexander Pope reflected in 1711, “to err is human, forgiveness, the divine,” then the forgiveness power of the US Constitution – the prerogative of forgiveness – should be beyond reproach.
Instead, an ungodly US president who seems incapable of forgiving has seemingly perverted this instrument of mercy into another serious threat to the rule of law. Donald Trump’s recent distortion of the power of grace risks leaving a damaging legacy: a plan to manipulate this vestige of the royal prerogative to put presidents and their cronies above the law. But there is a cure: an investigation and potential prosecution. We must treat any hindrances to justice that we discover as the crimes they are.
It is essential to distinguish between two types of corrupt pardons. There are those who are simply despicable for their inherent immorality – they can give the American free rein. war criminals (Blackwater contractors convicted of massacre), corrupt politicians (former Illinois Governor Rod Blagojevich, convicted of attempting to sell a Senate seat), and relatives (Mr. Trump’s son-in-law criminal sentenced father Charles Kushner). There are others that present structural dangers by putting the president and his entourage above the law and thwarting investigations of wrongdoing.
The pardons of the first category, as loathsome as they are, are not only within the power of the president but seldom constitute crimes. They should be condemned with force for pointing out that corruption and cruelty are allowed and even rewarded in America. Future presidents should strengthen standards for their own leniency grants and take seriously their duty, in the words of the Supreme Court, to preserve the “trust that [a president] will not abuse ”the power of forgiveness. But the only real bulwark against this kind of forgiveness – unless amendment the constitution to remove the power to issue them – is to avoid electing rotten presidents.
Mr. Trump’s grants of clemency to close advisers Paul Manafort and Roger Stone belong to a distinct and much more dangerous category. These pardons seem to be the last steps taken that may in fact have hampered crime investigations that Mr. Trump’s close associates were found guilty of committing. Clearly, these pardons could potentially constitute a criminal obstruction of justice or a bribe.
The fear that a president might abuse the power of grace to obstruct justice is anything but new. At the Virginia convention of 1788 to ratify the constitution, George Mason concerned that the president can use the power to “forgive crimes.” . . advised by himself. He also predicted that potential pardons could be used as obstructive tools to “stop the investigation and prevent detection.”
But James Madison responded that there would be a swift impeachment and dismissal for any president who abuses the power of pardon. Mr. Trump has already been impeached – although the Republican-controlled Senate voted not to remove him from office. The chances of a second arraignment before Joe Biden’s inauguration are slim. But the Constitution expressly contemplates another solution – criminal prosecution after the presidency – by saying that an indicted president “shall nonetheless be liable and liable to indictment, trial, trial and punishment, according to the law”.
Pardons used as a means to obstruct justice are precisely an integral part of criminal conduct because the president has the formal power to grant them. The sheer extent of this power allows a president to deploy it as a tool of crime. If the pardons used to reward silence could be overturned by the courts, they would be worthless to their beneficiaries and unnecessary in a scheme to interfere with a formal investigation.
The result is not to overturn granted pardons but to expose a president to prosecution for the way he has deployed them. If Mr. Trump abuses pardons to protect himself and his key justice allies, it could be charged with criminal obstruction of justice, an abuse of the constitutional power of leniency to accomplish an illegal end.
In a poetic turn of justice, such obstructive pardons would facilitate the prosecution of a president who grants them. If MM. Manafort and Stone and former national security adviser Michael Flynn were called to testify against Mr. Trump, their pardons would make it much more difficult for them to invoke their constitutional rights to remain silent to avoid self-incrimination.
If Mr. Trump used his power of pardon to commit crimes, he must be prosecuted; not to do so would set a dangerous precedent for future administrations. In future presidential misconduct investigations, key witnesses could systematically protect the boss in the hope (or in return) of immunity. Worse yet, future presidents might view their terms as four-year licenses to commit heinous crimes with impunity. As Mason worried in 1788, the president would have “established[ed] a monarchy and destroy[ed] The Republic.”
There is still the possibility of Mr. Trump trying to forgive himself. But, as Richard Nixon’s Justice Department estimated in 1974, self-forgiveness is not inside the constitutional power of the president. Self-forgiveness distorts the text of the constitution – one does not “take care” of things to oneself – and violates the centuries-old principle that no one can trust their own case. It would also allow each president to ignore federal criminal laws during his tenure, functionally placing the incumbent outside the law.
Perhaps the only way to limit this potential abuse of the power of pardon would be to prosecute a former president who attempts to use it against himself. If Mr. Trump seeks forgiveness, the next attorney general must zealously investigate him and prosecute all federal crimes uncovered. Forgiveness can be divine, but it cannot justify bad behavior. Democracy and the rule of law demand that we hold everyone accountable.