There is absolutely no legal problem with President Donald Trump’s newly announced pardon of controversial conservative commentator Dinesh D’Souza, who pled guilty in 2014 to a felony violation of federal campaign finance laws. Whatever one thinks of D’Souza, or of the extent to which he does or doesn’t deserve a pardon, the president, as I’ve written previously, has the clear constitutional authority to pardon just about anyone (perhaps other than himself) for prior federal crimes.
What’s different about the D’Souza story — like each of the president’s four prior pardons, to Joe Arpaio, Kristian Saucier, Scooter Libby and Jack Johnson — is that the president is reportedly going it alone, issuing his executive reprieves without going through the Justice Department’s Office of the Pardon Attorney, or following its regulations for pardon applications, as each of his recent predecessors did. Indeed, in Libby’s case, he issued a pardon that Libby does not appear to even applied for.
By bypassing the well-settled rules and guidelines for pardons, the president is not just turning his back on a process that is designed to insulate pardons, as much as possible, from being abused for the president’s personal gain; he is, as Chris Hayes tweeted Thursday morning, “sending an extremely clear signal to his confederates and associates with his pardons of politically connected convicts that they will get their reward if they stay strong.” That’s a signal he is unquestionably allowed to send as a constitutional matter, but it’s also a signal that ought to be ringing a lot of alarm bells — especially on Capitol Hill.
As I wrote back in October, the Constitution expressly gives the president the power to issue pardons for federal crimes — to just about anyone other than himself. As former president (and Supreme Court Chief Justice) 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.” Indeed, as Maddie McMahon and Jack Goldsmith correctly noted earlier today, “[t]he pardon power is among the broadest of presidential powers.”
Get the think newsletter.
Over time, one of the ways that presidents have insulated their pardon power from abuse (or, at least, the appearance of abuse) is by creating a series of objective, written internal procedures and substantive guidelines to govern pardon applications. To that end, since 1893, the power to process pardon applications and provide feedback on them has been delegated to the Justice Department by Executive Order, and there are detailed federal regulations today that set forth the criteria for pardons.
One of the ways that presidents have insulated their pardon power from abuse is by creating a series of objective, written internal procedures to govern pardon applications.
Among other things, the relevant federal regulations prevent those seeking a pardon from even applying for such relief until at least five years after they are released from their prison sentence, and require the attorney general to conduct a thorough investigation of each application and file a report (known colloquially as the “pardon book”) recommending a grant or denial of relief based upon a host of factors, including the applicant’s acceptance of responsibility for his crime and his conduct subsequent to his release; the seriousness of the offense; and other considerations.
In the process, the rules attempt to create some distance between the pardon applicant and the president — to de-personalize pardons, and to mitigate the possibility that the president might be tempted (or feel compelled) to issue pardons for purely personal or partisan reasons. In other words, the executive branch has created its own process for pardons in an effort to mitigate the prospect — or, at least, the specter — of abuse.
To be clear, there is no argument that the president is violating these longstanding regulations by pardoning someone like D’Souza without a formal DOJ recommendation; the regulation itself specifies that it is merely “advisory,” and does not “restrict the authority granted to the President under Article II, section 2 of the Constitution.”
But there is also a reason why all of Trump’s recent predecessors have strictly followed the rules — even when they may not have wanted to. As a detailed July 2009 story in Time recounted, President George W. Bush refused repeated pleas from his own vice president, Dick Cheney, to pardon Scooter Libby (Cheney’s former chief of staff) after White House counsel Fred Fielding concluded (and persuaded Bush) that the Libby conviction had not, in fact, been a “miscarriage of justice.” In that case, as in so many less visible ones, adherence to these rules insulated the president from the private pull of those closest to him and from public charges of serious abuse.
By sidestepping (if not altogether subverting) the Justice Department process, Trump has thrown that caution to the wind.
By sidestepping (if not altogether subverting) the Justice Department process, Trump has thrown that caution to the wind. He may well be doing it for the obvious reasons (to send a message to those close to him that he’ll have their back when the time comes). But by flaunting the guidance of his own subordinates and by ignoring the executive branch’s own rules, he is setting two very dangerous precedents: First, the more that presidents come to issue pardons devoid of the careful process that has previously accompanied them, the more the pardon power really will come to look like little more than a means for the president to dispense favors for his own political — and, perhaps, personal — gain rather than a means of correcting genuine errors in the federal criminal justice system. Second, the more the pardon power becomes a vehicle for abuse in that regard, the more attention pardons should receive on Capitol Hill.
After all, in the same opinion in which he recognized the breadth of the president’s pardon power as a legal matter, Chief Justice Taft was just as clear that, were the president to truly begin abusing the pardon power to subvert the rule of law, such abuses, rather than militating in favor of a narrower construction of the president’s constitutional authority, “would suggest a resort to impeachment.”
Steve Vladeck (@steve_vladeck) is a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law, and national security law. Steve is co-editor-in-chief of the Just Security blog (@just_security) and co-host of the National Security Law Podcast (@nslpodcast).