The pardons themselves are hitting the headlines. The law which allows a president to pardon, however, isn’t getting much attention. This largely unquestioned power undermines the power of the Federal courts to do their jobs. It also implies, correctly, in this case that anyone associated with the president has a pretty good chance of at least asking for a pardon.
The list of possible pardons is long. It includes a lot of people directly associated with Trump in various ways. Pre-emptive pardons for people like Ivanka Trump and Jared Kushner are apparently under consideration.
Thanks to a Supreme Court ruling in 1866, the presidential power is defined as “unlimited” except for impeachments. (Up to date as always, eh, America?) The power of pardon is also applicable to “pending” actions, which is bizarre, to put it mildly. (In fairness, this has been done before; Carter pardoned draft dodgers from the Vietnam War, for example.) Even back in 1788, there were reservations about this power.
The power of the president to pardon himself/herself is also highly questionable. On the face of it, the president can’t pardon himself or anyone else for charges which haven’t yet been laid. Nor is it specifically stated the president has that power.
However…
A pardon must by definition be for some specific offense or conviction. It also can’t be a Get Out Of Jail Free Card Forever For Whatever Reason. It’d be a license to commit crimes. There are no “exemptions from law made by law”. Laws are supposed to apply to everyone.
The pardons also apply only to Federal, not state, law. That’s a major deal for Trump, who’s in a legal quagmire himself. For a guy facing 4000 lawsuits after he leaves office, Trump’s personal legal affairs are a moot point at best in terms of pardons. He’s accumulated enough lawsuits against him for a lawsuit a day for the next 10 years plus, and New York is pretty hostile to him. Would he be looking for legal options? Of course he would.
Can he pardon himself? It’s a long stretch of a mediocre imagination.
There are things presidential pardons can’t do:
• He can’t pardon himself according to the basic tenets of the law; he can pardon others. Nowhere is there any mention of self-pardoning powers. Nixon didn’t pardon himself.
• He can’t pardon anyone if a case is not in a state of legal process.
• He can’t pardon people for future legal actions; it’s not within the scope of the presidential powers. How do you pardon someone for something unspecified?
If anything, this is a roadmap for those wishing to press charges; just wait until the possibility of pardon is removed, then charge like a herd of buffalo. The statutory limit allows plenty of time for delay in charging.
Feudal laws in the 21st century? Why it won’t work for long, if at all.
The power of pardon was originally a gift of kings in feudal times. It was also an often political process, giving the king a power over his nobility. The 1866 ruling is more likely to have been a simpler way of managing post-Civil War pardons in the turgid politics of the time. Pardons could be issued to Confederates, for example, to help the healing process. It was a practical way of clearing the air which desperately needed doing. (The pardon to the Confederates was issued by Andrew Jackson in 1865, and was apparently challenged, resulting in the Supreme Court ruling in 1866.)
Whether or not this presidential power has any right to exist in the 21st century with its rampant crime and corruption is another matter. Should organized crime be able to just get a pardon by ringing the president when it wants one? Should the law include a way of getting around the law like this? There has to be an end to this absurdity.
Presidential power ends at the end of term of office. Trump has 28 days to pardon anyone. Exactly how much good the pardons can do for those pardoned is debatable. New charges laid on a different basis wouldn’t be affected.
It’s quite possible that the pardoned people will dodge a few bullets, but not all, by any means. The 50 states can lay any charges they want, anytime, with no presidential input. The legal mega-wars are just starting, and they can wait a few weeks.
