Monday’s news that Special Counsel Robert Mueller had unsealed an indictment against Paul Manafort and Rick Gates, and has entered into a plea agreement with former Trump campaign official George Papadopolous, will surely open the door to renewed discussion of President Trump’s pardon power. Over the weekend, in fact, two fixtures of Washington’s conservative legal establishment argued that President Trump should issue “a blanket presidential pardon to anyone involved in supposed collusion with Russia or Russians during the 2016 presidential campaign.”
Given this furor, those not familiar with constitutional law may be wondering if there are any limits on who the President can or cannot pardon. And, related, are there any options in the event that the President does not seem to be honoring said limits?
Legally, Trump can pardon pretty much anyone he wants to for federal crimes, with the possible exception of himself. (On that point, legal scholars disagree.) The scope of the presidential pardon is so wide that it can, as in the case of disgraced Maricopa County Sheriff Joe Arpaio, essentially overrule the judiciary.
It may seem problematic to give any President, including (if not especially) this one, such a complete power over federal criminal justice. Indeed, as Chief Justice (and, not coincidentally, former President) William Howard Taft wrote for the Supreme Court in 1925, “Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.”
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But the pardon power itself is an important check on the unelected judiciary — because, as Taft explained, “[t]he administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.” That check would be worth very little indeed if its use could be controlled by anyone other than the President.
So what does the Constitution say about cases in which the President abuses the pardon power —whether to free his friends, to hide his own culpability, or just to serve indiscriminate, irrational ends? The short answer is nothing. Instead, as Taft explained later in the same opinion, executive overreach in such cases should be solved through political — rather than judicial — remedies. As he concluded, “Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.”