President Donald J. Trump not only believes he is above the rule of law but, according to the Los Angeles Times, he believes he is the law. This dictatorial disrespect for the law has led the president to flaunt his absolute power to pardon anyone, under any circumstance, including those who are under investigation and have not been charged with a crime. The President has even pushed into the extreme and constitutionally debatable position that he has the absolute power to pardon himself if charged with a criminal offense.
Pardon Can Be Exercised at Any Time After Commission of Offense
This kind of use of the executive pardoning power—found in Article II, Section 2, of the U.S. Constitution—is generally referred as a “preemptive pardon.” This presidential pardon power was given constitutional credence in 1866 by the U.S. Supreme Court in Ex Parte Garland in which the court said the president’s power to pardon “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.”
There are, however, several basic rules developed by the Supreme Court that must be understood about a preemptive pardon:
- A pardon is an act of grace,
- A pardon is a piece of physical property like a deed,
- A pardon, to be effective, must be accepted by its recipient, and
- The acceptance of a pardon is an admission of guilt by its recipient that they committed a crime.
And it is within the framework of these four rules that explains why anyone (including the president) under criminal investigation or indictment for unlawful activities involving President Trump may not escape criminal liability. Arguably, acceptance of a presidential pardon under these circumstances would be a prima facie admission to the crime of obstruction of justice.
Conspiracy to Obstruct Justice
For example, let’s assume the president issues a preemptive pardon to either Paul Manafort or Michael Cohen prior to conviction of a crime and they accept the pardon. Additionally, let’s assume the President issues the pardons with intent to prevent these individuals from being witnesses against him or others in his family, staff or campaign. In effect, there is a conspiracy to obstruct the federal investigation by, among many other overt acts, issuing and accepting the presidential pardons.
The U.S. Justice Department or Special Counsel Robert Mueller could seek and receive a grand jury indictment for obstruction of justice against anyone accepting a preemptive pardon who is either a subject or target in the Russia/Trump investigations. The indictment would most likely be brought under the omnibus provisions of 18 U.S.C. Section 1503.
The courts have often held that to convict under this omnibus or “catchall” provision the government must prove beyond a reasonable: (1) that there was a pending judicial proceeding, (2) that the defendant knew this proceeding was pending, and (3) that the defendant then corruptly endeavor to influence, obstruct, or impede the due administration of justice.
The government would have no problem showing (1) that there was a pending judicial proceeding in the Russia/Trump criminal investigation and (2) that anyone accepting a preemptive pardon from President Trump in connection with that investigation knew there was a pending judicial proceeding concerning it.
The critical issue then is whether by accepting a preemptive pardon, a subject or target in the Russia/Trump probe “corruptly endeavored” to obstruct the “due administration of justice” in that probe.
The U.S. Supreme Court as far back as 1893 has held that in order to “corruptly endeavor” to obstruct the due administration of justice “[t]he action taken by the accused must be with an intent to influence judicial or grand jury proceedings …. Some courts have phrased this showing as a nexus requirement – that the act must have a relationship in time, causation, or logic with the judicial proceedings. In other words, the endeavor must have the natural and probable effect of interfering with the due administration of justice.”
Issuance and Acceptance of Pardon a Corrupt Endeavor
Acceptance of a preemptive pardon would be an admission of guilt to having engaged in criminal wrongdoing in connection with not only the Russia/Trump probe but with possible criminal activity engaged in by the president himself. A jury could reasonably infer that both the issuance and acceptance of a preemptive pardon was a corrupt endeavor designed to have “the natural and probable effect of interfering with the due administration of justice.”
The president’s pardon power was designed—and remains so—to be the most absolute of all his or her powers. But even that power is not limitless. For example, as George Mason University Professor of Public Policy James Pfiffner has observed: the president cannot pardon “before an offense has been committed, which would give the President the power to waive the laws.
In 1787, as the framers discussed the Articles of Confederation, South Carolina delegate George Pinckney introduced a proposal to give the U.S. president the same complete pardon power enjoyed by English monarchs with the exception of impeachment. That proposal was defeated, indicating the framers did not want an American president to be a king unto himself, above the rule of law.
No responsible legal scholar or average citizen would accept that President Trump, as he has suggested, could shoot and kill someone on “5th Avenue” and not be held legally accountable.
Likewise, no one could rationally accept that the framers intended with their grant of pardon power to the president that the power could be used by the president to preemptively pardon any and everyone who may have incriminating evidence of criminal wrongdoing by the president. That’s why the Pinckney proposal was rejected by the framers. An American president is not a king, or a dictator, or a tyrant, or anyone else who believes he or she is a law unto themselves.
President Donald J. Trump can rant and rave all he wants about the Special Counsel’s investigation being a “witch hunt” and that the FBI and the Justice Department are corrupt, but the truth, and its accompanying legal accountability, are drawing near—and the president’s pardon pen cannot preemptively save the day, at least not for himself.