The Supreme Court and the president’s pardon power

Correction appended.

The Constitution gives the president the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.” In the days before Christmas, President Donald Trump used this power to pardon or commute the sentences of over 40 people, including Paul Manafort, Trump’s former campaign manager; Charles Kushner, the father of Trump’s son-in-law and adviser, Jared Kushner; Roger Stone, who was convicted by Special Counsel Robert Mueller of obstruction of justice and other crimes; and four men who were convicted of killing Iraqi civilians while working as contractors for the private security firm Blackwater.. With just under three weeks remaining in Trump’s term, there could be more pardons on the horizon – and Trump has asserted that he has the “absolute right” to pardon himself.

The Supreme Court has made clear that, subject to the exception for impeachment, the president’s power to grant pardons is “unlimited,” with virtually no oversight or limiting role for Congress. In Ex parte Garland, which involved President Andrew Johnson’s pardon of a lawyer who had served in the legislature of the Confederacy, the court indicated that the president’s pardon power covers all federal offenses. The president can issue a pardon at any point after a crime is committed and before, during or after criminal proceedings have taken place. The president cannot, however, pardon someone for future crimes. A pardon covers both the offender’s conviction for the crime and the sentence for that crime.

In Burdick v. United States, the Supreme Court addressed the case of a newspaper editor who declined to testify before a grand jury, invoking the Fifth Amendment, even after the president pardoned him. Burdick declined to accept the pardon, and he was held in contempt for refusing to testify. The question before the Supreme Court was what effect, if any, the unaccepted pardon had. The court ruled that a pardon becomes effective only if it is accepted. The court also compared immunity, granted by Congress, and a pardon, explaining that the differences are “substantial.” Unlike immunity, the court reasoned, a pardon “carries an imputation of guilt; acceptance a confession of it.”

And in Connecticut Board of Pardons v. Dumschat, the court emphasized that pardons “have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.”

The broad and largely unreviewable pardon power outlined in the Supreme Court’s cases means that the president has significant leeway to pardon, for example, family members or close associates such as former New York City Mayor Rudolph Giuliani — although neither Giuliani nor any Trump family members have been charged with any crimes.

A presidential pardon applies only to federal offenses, so it would leave open the possibility that anyone whom Trump pardoned could still face charges in state court. In 2019, in Gamble v. United States, the Supreme Court upheld the “dual-sovereignty” doctrine, which allows a state to prosecute a defendant under state law after the federal government has prosecuted him for the same conduct under federal law without violating the Constitution’s ban on double jeopardy. (Some states, like New York, also have their own double jeopardy laws. In October, a New York court threw out state mortgage fraud charges against Manafort, pointing to his federal conviction on similar charges.)

The Supreme Court has not weighed in on the question whether Trump can pardon himself. In a memorandum dated Aug. 5, 1974 – less than a week before President Richard Nixon resigned – acting Assistant Attorney General Mary Lawton of the Department of Justice’s Office of Legal Counsel concluded that the answer is no. The memorandum left open the possibility of two work-arounds, however: Congress could pardon the president (an unlikely scenario these days); or the president could allow the vice president to become the acting president under the 25th Amendment, on the ground that the president was temporarily unable to perform his duties, and the vice president could then pardon him.

This is all purely hypothetical, of course, right now. It remains to be seen whether the president will issue any more pardons before Jan. 20, and – if he does – who will receive them.

Correction (Jan. 5, 10:15 a.m.): An earlier version of this article cited Ex parte Garland for the proposition that a pardon creates a situation as if the defendant had never committed the crime. But the court later recognized that pardoned conduct can be considered in some subsequent proceedings, such as to enhance a defendant’s sentence in a subsequent state-court proceeding.

This article was originally published at Howe on the Court.