PRESIDENT DONALD J. TRUMP AND THE POTENTIAL ABUSE OF THE PARDON POWER.

Author:Johnson, Scott P.
 
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  1. INTRODUCTION

    President Donald Trump's pardon of Sheriff Joseph Arpaio of Maricopa County, Arizona on August 25, 2017, as well as his pardon of I. Lewis "Scooter" Libby Jr. on April 13, 2018, raises concerns about President Trump's potential abuse of the pardon power during the remainder of his term. (1) In fact, there are indications he is considering the use of the pardon power to protect his aides, family, and perhaps even himself, creating an environment where the public must be concerned about the possibility of a president using the constitutional pardon power to cover up his improper behavior. (2) The claims that President Trump and members of his presidential campaign allegedly colluded with the Russian government to influence the 2016 presidential election create the real possibility that Trump might use the pardon power to subvert any investigation. (3) Although most media attention in the aftermath of the election focused on discovering a connection between Trump's campaign and Russian intelligence agencies, (4) the events underlying the investigation by Special Counsel Robert Mueller III and various congressional committees also raise important issues about the exercise of presidential power under the United States Constitution. (5)

    The presidential pardon power is a significant grant of authority that could be used in a self-interested manner by an executive to shield criminal or unethical activities from public scrutiny. (6) In fact, the Framers of the Constitution voiced concerns about the potential use of the pardon power to conceal criminal activities related to the President. (7) The participants in the Philadelphia Constitutional Convention of 1787 incorporated the pardon power in the Constitution based upon the assumption that a president would not violate the law. (8) With the advantage of hindsight, Americans in the twenty-first century have reason to question the validity of the Framers' beliefs regarding presidential behavior.

    The pardon of Richard M. Nixon for any criminal misconduct by President Gerald Ford in 1974 provided the most obvious example negating the Framers' assumption about the law-abiding behavior of a president. (9) While many believe partisan interest to be the basis of Ford's pardon of Nixon, (10) more recent scandals demonstrate how self-interest might also motivate a presidential pardon. (11) In particular, the questions raised by President George H. W. Bush's timely pardons of several key Iran-Contra figures, (12) and the investigation of President William Clinton by independent counsel Kenneth Starr, (13) provide examples where the pardon power may have been used for personal protection. As noted above, President Trump reportedly has considered using the pardon power to protect officials connected to his presidential election campaign as well as individuals currently serving within his administration. (14) The presidential scandals of the modern era thus present an appropriate setting for reexamining the pardon power. (15)

  2. THE CONSTITUTIONAL HISTORY OF THE PARDON POWER

    The United States Constitution bestows upon the President the "Power to grant Reprieves and Pardons for Offenses against the United States except in Cases of Impeachment." (16) While the pardon power is regarded as a lesser known check against the federal judiciary in the American system of checks and balances, the Framers justified granting the President this power as necessary to suppress potential rebellions. (17) However, Blackstone warned that "[i]n democracies... this power of pardon can never subsist." (18)

    Specifically, the pardon power is listed in Article II of the U. S. Constitution and has few limitations. (19) The power can be exercised only for individuals who have violated federal law (20) and a person can even refuse to accept a pardon. (21) As noted in Article II, it also cannot be used in cases of impeachment. (22) Scholars have concluded that the impeachment portion of the pardon clause means that a president cannot overturn an impeachment conviction. (23)

    Regarding the scope of a pardon, a president can eliminate all portions of a criminal penalty or only part of it, and he can also place specific restrictions on it if he so chooses. (24) A pardon can be issued at any time prior to, during, or after a person has been charged, or before, during, or after a criminal trial. (25) A pardon can be given to one person or a group of individuals, and it erases all penalties and other legal effects of a conviction. (26) In short, it is an "act of grace." (27) A person receiving a pardon is released from serving any remaining prison time and has his or her civil rights restored. (28) By law, it is as if the individual never committed the criminal act. (29)

    The United States Supreme Court and lower federal courts have interpreted the pardon power in three notable cases. (30) In the case of Ex parte Garland, Augustus Garland was an attorney and a senator from Arkansas in the Confederate legislature. (31) In the aftermath of the Civil War, Congress passed legislation that essentially disbarred Garland as well as any person who had served in the Confederate government. (32) Garland was later pardoned by President Andrew Johnson. (33) The U.S. Supreme Court eventually voted 5-4 that the U.S. Congress could not pass such laws to punish former members of the Confederacy. (34) A majority of justices ruled that the congressional action was unconstitutional because it was a bill of attainder and an ex post facto law. (35) The Court also held that Garland could not be punished because he had received a pardon and because Congress was unable to place any limits on the presidential power to pardon. (36) Furthermore, because he was an attorney who functioned as an official within the judicial branch, he could only be removed through judicial power, not legislative power. (37)

    In Ex parte Grossman, the U.S. Supreme Court voted unanimously to allow presidents to pardon individuals who had been charged with criminal contempt. (38) In 1920, Philip Grossman was arrested and charged with selling alcohol during Prohibition which violated a federal law, the National Prohibition Act, also known as the Volstead Act. (39) Grossman continued to sell alcohol after an injunction was filed in federal court. (40) He was held in contempt of court, sentenced to one year in federal prison, and fined $1,000. (41) In 1923, President Calvin Coolidge pardoned Grossman from serving the prison sentence but held that he must pay the fine. (42) A federal judge ordered Grossman back to prison after issuing a ruling that Coolidge's pardon was unconstitutional based upon the argument that presidents cannot pardon a criminal contempt charge. (43) A charge of contempt is based solely upon the authority of a judge and is unlike a defendant violating a legislative act and subsequently being convicted by a jury of his or her peers. (44)

    In Grossman, Chief Justice William Howard Taft authored the unanimous opinion for the Court upholding the president's power to pardon in cases pertaining to criminal contempt. (45) In his opinion, Taft stated that the King of England maintained such power under common law and emphasized that the president must have full discretion to exercise this check over the judicial branch in order "to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law." (46) In fact, Taft noted that it is more imperative that a president have such power to pardon contempt charges because the defendant is at the mercy of a judge's arbitrary decision as opposed to being judged by a jury of fellow citizens. (47) Therefore, it is more likely that a defendant would have his or her rights violated by a single judge as opposed to a jury composed of several persons. (48) Taft also argued that presidents should be able to use the pardon in cases of criminal contempt because the statute of limitations applies to criminal contempt charges in the same manner as it applies to violations of criminal law. (49) Finally, Taft emphasized that the pardon power had been used previously by presidents in instances of criminal contempt 27 times over the last century without any abuses committed by chief executives. (50)

    The most controversial pardon exercised by a president occurred in 1974 when President Gerald Ford pardoned former President Richard M. Nixon. (51) Nixon had been pardoned prior to the completion of any criminal investigation by federal prosecutors or any specific charges brought against him. (52) The case of Murphy v. Ford was not resolved by the U.S. Supreme Court but by a federal judge, Noel Fox, who served on the U.S. District Court for Western Michigan. (53) F. Gregory Murphy was an attorney in Michigan who filed a lawsuit that Ford's pardon of Nixon was unconstitutional because technically Nixon had not been found guilty of any crime nor had he even been indicted or charged with a crime. (54) Judge Fox ruled in favor of President Ford and his power to pardon Nixon. (55) In his opinion, Fox referenced the idea expressed by Alexander Hamilton in Federalist No. 74 that a well-timed pardon was necessary to quell rebellions and insurrections, (56) and he also referenced the precedent established in Ex parte Garland (1866) which held that the "pardon power is unlimited." (57) According to Fox, Watergate was a rebellious period in American history, and Nixon had orchestrated an assault on the freedoms of the American people. (58) Fox sided with Ford's desire to put an end to the divisions caused by Watergate, the end of which served the public interest because the country needed to focus on more pressing problems such as the struggling economy and social unrest. (59) In short, Ford's pardon of Nixon was within the spirit of the power granted to the Chief Executive within Article II. (60)

  3. CONTROVERSIES RELATED TO THE PARDON POWER

    Clearly, the risks presented by the...

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