The Supreme Court Could Use the Pardon Power to Create an Imperial Presidency
Americans are awaiting anxiously for the Supreme Court to rule on Donald Trump's immunity case. Many fail to realize the terrifying role the pardon power could play.
Recently, when many hear of the pardon power, the immediate thought that comes to mind is how presidents can use it to break or evade criminal laws. But the pardon power is poised to actually increase the president’s power to violate laws. At oral argument, the justices at the U.S. Supreme Court said as much.
When placed in Article II Section 2 of the Constitution, the framers never imagined that presidents would use the pardon frequently or for corrupt purposes. It derives from the Medieval times in England, where kings ruled with absolute power and absolved defendants of their convictions where they saw fit. The idea behind it is that it may be used to correct injustice, foster social unity, and perhaps in an act of mercy or amnesty. When carried into American law, the framers gave this power few restraints—namely, that it may not be used in instances of impeachment.
The framers considered banning pardons for treason, requiring Senate approval, or requiring a conviction to occur first but rejected all of these. James Madison believed that this power would be used sparingly.
Today, the Supreme Court has followed the framers’ lead and construed the pardon power as broad. However, it has been ruled that presidents cannot pardon crimes that haven’t been committed. As it decides in the most recent presidential pardon power case, the Supreme Court considers potential groundwork for a future president to operate in ways that could have never been considered.
I spoke about this and the pardon power in greater detail for Politico. And I wrote a book on this topic, out in September. (Pre-order link on my website, www.kimwehle.com.
Do presidents enjoy criminal immunity?
The Constitution does not explicitly give presidents immunity from civil liability compared to congressional members. However, the Supreme Court ruled in 1982 that presidents have immunity from civil liability. The Court reasoned that if not, people would constantly sue them for monetary damages. The question, as explained in Nixon v. Fitzgerald, is whether a given action is within the president’s official job description or is private.
Donald Trump is the first to pose the idea of criminal immunity for presidents because he’s the first to face 88 felony counts. During oral arguments in the immunity case, several justices repeatedly suggested that under the Constitution, a president’s pardon power cannot be reasonably construed as limited or constrained in any way, for any reason — even if abused or used in committing a crime. Counsel for the government seemed to agree.
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What did the framers intend for?
It is highly doubtful that the framers ever imagined the pardon power as a guide to defining and expanding the president's powers. Nor did they intend for presidents to use it to commit crimes and get away with them. The framers did not want any more kings, so to imagine that they would have given the president any power that would resemble a monarchy is highly unlikely. This directly conflicts with the core idea of American democracy itself.
American democracy is built around the idea that the people have the ultimate last say; our voice should be the loudest. The framers intended those who hold government positions to serve at the people's pleasure. If the people grow unhappy with government officials, they can vote at the ballot box to make a change. But if presidents can commit crimes with impunity, leaving the nation to deal with the fallout of presidents abusing the law, the power of voters diminishes.
What are the key points from oral arguments?
The Supreme Court gave us reason to believe that it is ready to rule presidents can commit crimes without punishment but only for the sake of official acts. Any private or criminal act may still be prosecuted.
Justice Neil Gorsuch and Samuel Alito suggested that the pardon power is so broad that immunity from criminal prosecution is necessary to help control it. Counsel from the government told Justice Elana Kagan and Justice Gorsuch that the pardon and veto power are absolute.
In the words of Justice Gorsuch, “What would happen if presidents were under fear — fear that their successors would criminally prosecute them for their acts in office . . . It seems to me like one of the incentives that might be created is for presidents to try to pardon themselves. . . And perhaps, if he feels he has to, he’ll pardon himself … every four years from now on.”
Counsel for Jack Smith appeared to conclude that it is constitutional for a president to direct an aide to obstruct justice and then pardon them.
It is frightening to imagine the lengths that Trump would take to use the pardon power to incentivize and protect his cronies should he get into office again. A decision that gives him immunity instead risks only encouraging him. Should the Supreme Court rule that presidents have absolute criminal immunity because of the pardon power, the groundwork will have been laid for a flurry of crimes to be committed openly. If so, the Supreme Court will be the one responsible for it.
Follow the facts,
KW.
My new book, Pardon Power, is available for pre-order on Amazon, Barnes & Noble, and everywhere else!
If you've ever wondered about the constitutional basis for presidential pardons, this book explains it, offering examples from the recent and distant past. Follow constitutional law professor and popular newsroom commentator Kim Wehle through a fascinating rundown of how this executive power has been—and might be—used by American presidents.
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There’s good reason for Trump proposing criminal immunity! He’s a criminal!
Criminal and civil immunity for a president creates an authoritarian government, a dictatorship!