President
Trump and his lawyers have discussed whether he could pardon his
relatives and aides to undercut, or even end, the special counsel’s
investigation into charges that his campaign colluded with Russia to
influence the 2016 election, The Washington Post reported on Thursday night.
There’s
no question that with a stroke of his pen, Mr. Trump can shield his son
Donald Trump Jr., his son-in-law, Jared Kushner, and other close
associates from potential prosecution. Despite the uproar that would set
off, we know by now that Mr. Trump loves the grand gesture, whatever
the consequences. Besides, his family is at stake.
While
his authority to pardon is crystal clear, a crucial, threatening, legal
ambiguity should make him think twice about using this authority.
The
Constitution gives the president “power to grant reprieves and pardons
for offenses against the United States, except in cases of impeachment.”
The framers had sound reasons for bestowing that authority. As
Alexander Hamilton explained,
criminal law in the late 18th century was so severe that without the
pardon power to soften it, “justice would wear a countenance too
sanguinary and cruel.”
Consistent
with the framers’ design, the Supreme Court has interpreted the
president’s pardon power broadly. The president can pardon anyone for
any crime at any time — even before a suspect has been charged. Congress
cannot withdraw presidential pardons, and prosecutors and courts cannot
ignore them.
Continue reading the main story
ADVERTISEMENT
Continue reading the main story
But
could a pardon be a criminal abuse of power? Some would argue that
would contradict the founders’ vision of unlimited pardon authority. If a
president sold pardons for cash, though, that would violate the federal bribery statute.
And if a president can be prosecuted for exchanging pardons for bribes,
then it follows that the broad and unreviewable nature of the pardon
power does not shield the president from criminal liability for abusing
it.
The Justice Department and the F.B.I. proceeded on this premise in 2001 when they opened an investigation
into possible bribery charges arising out of President Bill Clinton’s
pardon of the fugitive financier Marc Rich, whose former wife had
donated $450,000 to Clinton’s presidential library. The investigation lasted until 2005, though no charges resulted.
Of
course, bribery would not be the relevant crime. No one thinks that
Donald Jr. or Jared Kushner — or anyone else involved in the Russia
scandal — would pay the president for a pardon.
Yet federal obstruction statutes
say that a person commits a crime when he “corruptly” impedes a court
or agency proceeding. If it could be shown that President Trump pardoned
his family members and close aides to cover up possible crimes, then
that could be seen as acting “corruptly” and he could be charged with
obstruction of justice. If, as some commentators believe, a sitting president cannot be indicted, Mr. Trump could still face prosecution after he leaves the White House.
There is strong support for the claim that the obstruction statutes apply to the president.
In
1974, when the House Judiciary Committee voted to impeach President
Richard Nixon, members on both sides of the debate acknowledged that
presidential obstruction of justice was not only impeachable but also
criminal. A quarter century later, the Senate split 50-50 on whether to
remove President Clinton from office on obstruction charges, but
senators from both parties agreed that the obstruction laws applied to
the president.
There
is a broad consensus that a president exercises the pardon power
properly — not “corruptly” — when he grants clemency based on
considerations of mercy or the public welfare. President Gerald Ford invoked
both of those values when he pardoned Nixon: He said that a prosecution
of the former president would be too divisive and that Nixon had
suffered enough. President George H.W. Bush gestured to both values when he pardoned former Reagan administration officials for their involvement in the Iran-contra scandal.
In
Trump’s case, the question would be whether he was acting out of the
goodness of his heart, or covering up for his family, his associates and
himself.
We
expect — and hope — that prosecutors and courts would give wide
latitude to a president in evaluating his pardon decisions. Only in the
most egregious cases should a president face criminal liability for
actions taken while in office.
While
the law on this subject is unsettled, that in itself should be
unsettling to the president as he considers whether to grant clemency.
Not only might the pardons constitute obstruction, but the pardoned
individuals might be compelled to testify against Mr. Trump without any
recourse to the Fifth Amendment right against self-incrimination, since
they would no longer have any concern about incriminating themselves.
He
could ensure that his family members and aides get off scot-free for
any crimes they may have committed during the 2016 campaign. But by
extricating those individuals from a legal predicament, he might make
his own predicament worse.
Daniel Hemel (@DanielJHemel) and Eric Posner are professors at the University of Chicago Law School.
Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and sign up for the Opinion Today newsletter.NYT
Posts
No comments:
Post a Comment