In the wake of the indictment of 13 Russian agents, detailing how U.S. social media sites became the vehicle for a concerted Russian plot to influence the 2016 presidential election, conservative commentators once again are calling on President Trump to use his pardon power to exonerate those accused of violating laws protecting U.S. elections against foreign interference. As Special Counsel Mueller comes ever closer to placing the president in checkmate and the administration’s defensive options continue to dwindle, Trump could be increasingly tempted to heed their suggestion.
Even more than the president’s ability to fire Justice Department employees at will, the pardon power is regarded as a blank check for presidential power, and so Trump’s lawyers may be advising him that this is an ace up his sleeve. But any such legal advice to the president would be seriously mistaken. The fact that the pardon power is not subject to congressional or judicial review does not immunize the president from the risk of criminal penalties or impeachment for misusing that power.
{mosads}In this instance, issuing pardons for the purpose of interfering with the investigation could significantly increase Trump’s exposure to obstruction of justice charges. Worse, it could potentially expose him to charges of treason.
The pressure being brought to bear on Trump’s former campaign manager, Paul Manafort, because of Rick Gates’s guilty plea, illustrates the damage the president could inflict on the investigation through the widespread, prospective use of the pardon power. As Mueller and his team move through the witnesses who can testify to potential collaboration between the Trump campaign and Russian agents, one after the other has agreed to cooperate in order to reduce his own exposure to prosecution.
In addition to putting pressure on Manafort, Gates’s cooperation led to the indictment of attorney Alex Van Der Zwaan, who has admitted to making false statements to investigators about his communications with Gates. Possible collaboration by Michael Flynn may have contributed usefully to the investigation into the 13 Russian agents.
The most ambitious suggestion regarding the president’s use of the pardon power maintains that he should issue a blanket, prospective pardon to anyone who has ever been investigated by Mueller. Referring to the current investigation as the “political weaponization of criminal law,” David Rivkin and Lee Casey insisted back in October that the president could “end this madness by immediately issuing a blanket presidential pardon to … anyone for any offense that has been investigated by Mr. Mueller’s office,” including “the president himself.”
The use of prospective pardons would particularly interfere with this natural unravelling of the facts, as one cooperating witness leads investigators to the next. It is unclear whether a pardon issued prior to any conviction would be valid. But this might not matter, since even if the pardon power were applied post-conviction, the mere anticipation of a pardon would have the effect of reducing incentives for cooperation if potential witnesses were sufficiently assured of receiving one.
There are several serious problems with broad presidential use of the pardon power under these circumstances. First, the pardon power does not extend to “cases of impeachment.” The purpose of this exception is to ensure that the president is not able to exempt himself from removal from office. While pardoning criminal offenses is not the same as pardoning someone from an impeachment, which is what is expressly forbidden, allowing a sitting president to use the pardon power to intentionally thwart an investigation into his own possible wrongdoing would run afoul of the spirit and purpose of the impeachment exception of Article II, § 2.
Second, issuing a blanket pardon would further entangle the president with Russian interests, since at least in theory it could extend to the Russian agents under indictment themselves. After all, if Americans charged with conspiring with Russian agents to subvert U.S. elections are to be pardoned, it stands to reason that that those Russians on the other side of those transactions deserve pardons as well. This absurd possibility highlights how inappropriate it would be for the president to start granting pardons to those under scrutiny by the special counsel, given that the investigation was prompted by concerns about collusion between Americans and Russians to subvert a U.S. election.
Third, Trump probably would not get away with issuing pardons in this situation if he tried it. Any such action would constitute “Exhibit B” in Mueller’s obstruction of justice probe, second only to the firing of former FBI Director James Comey. Worse, if the pardon extends to those who have collaborated with Russian election subversion, Trump could find himself charged with treason under 18 U.S.C § 2381. Now that the evidence of Russian interference with the 2016 election is, in the words of National Security Advisor H.R. McMaster, “incontrovertible,” and continuing Russian efforts to interfere with U.S. politics have been identified, further attempts to put a stop to the Russia probe would itself constitute collusion with past and continuing Russian covert operations.
Interfering with law enforcement efforts to secure our country against known, widespread foreign cyberattacks is tantamount to disabling a U.S. missile defense system designed to protect us against a foreign nuclear attack: intelligence is the most critical part of protection against future cyber hacking and cyber interference, and the president’s self-interested interference with such intelligence would be giving “aid and comfort” to our most formidable enemy at present, namely Russia, which constitutes treason.
The fact that mainstream conservatives are calling on the president to misuse his pardon power, similar to calls to fire Robert Mueller, illustrates just how far we have come down the path of what Arthur Schlesinger Jr. once dubbed “the imperial presidency.” We are embroiled in a struggle to safeguard our democracy against a president who believes himself above the law, whom congressional Republicans are willing to enable.
When traditional constraints on presidential power come under attack, not for the purpose of promoting a substantive agenda, but solely for the purpose of assisting the president to avoid paying the price for his own misdeeds, we are at the outer limit of what a democracy can bear.
Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy, and director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.
[Note: The views expressed in this article are those of the author, expressed in an unofficial capacity.]