Potential Pardons = Potential Constitutional Crisis
I am cautious about the term “constitutional crisis.” Part of the reason is that I think that the term is often used without any notion of a definition. It is often deployed in as an intuitive concern over the functioning of some element of the federal government that involves either norms surrounding constitutional offices or outright defiance of the document. Of course, since the constitution itself is open to interpretation, so, too, is the definition of a constitutional crisis.
A good primer on the subject is a piece at FiveThirtyEight by political scientists Julea Azari and Seth Masket: The 4 Types Of Constitutional Crises. Of the four they suggest a main common theme is that one institution of the government challenges, ignores, or defies the legitimate power of another institution.
While I would recommend the piece in full, here are the four for the sake of reference:
- The Constitution doesn’t say what to do.
- The Constitution’s meaning is in question.
- The Constitution tells us what to do, but it’s not politically feasible.
- Institutions themselves fail.
For the most part in the context of the Trump administration the concern is that the executive would ignore another branch. Although, there is also the real concern that the executive would over-reach its authority, leading to other parts of the government, even within the executive branch, seeking not to comply. These concerns fit into #3 and #4, predominantly.
An early example/test of this notion was whether the Trump administration would comply with court orders that opposed his travel ban executive order. I was, to be honest, concerned that the administration might seek to ignore the court and enforce the order anyway (and that enforcement elements of the executive would comply with the president, not the courts). Thankfully, this did not happen. That would have been a clear constitutional crisis of overreach and then raising the question of what the courts, Congress, and even parts of the executive branch would do in such an event.
It is important to remember that while we often speak of the constitutional order in mystical terms, the reality is that we rely upon the individuals who inhabit these institutions to adhere to established norms. We also hope that if an institutional actor misbehaves that only actors would use their powers to counteract that misbehavior (ambition countering ambition, and so forth, a la Federalist 51).
A new test is now on the horizon: the pardon issue. Via the NYT, Trump Says He Has ‘Complete Power’ to Pardon:
President Trump on Saturday asserted the “complete power to pardon” relatives, aides and possibly even himself in response to investigations into Russia’s meddling in last year’s election, as he came to the defense of Attorney General Jeff Sessions just days after expressing regret about appointing him.
Mr. Trump suggested in a series of early morning messages on Twitter that he had no need to use the pardon power at this point but left the option open. Presidents have the authority to pardon others for federal crimes, but legal scholars debate whether a president can pardon himself. Mr. Trump’s use of the word “complete” seemed to suggest he did not see a limit to that authority.
“While all agree the U.S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us,” he wrote on Twitter. “FAKE NEWS.”
The US Constitution says the following (Article II, Section 2):
The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
This is both a check on the judiciary and a linkage to the monarchical notions of executive power that the Framers had when creating our chief executive (it was, after all, their main experience with such things). Mercy from the throne has a time-worn tradition, after all.
Now, the constitution does not explicitly limit the president in terms of the question of a self-pardon, because, textually, the power reads as absolute save the caveat at the end. Further, there is no textual thought to the potentiality of the president using the power to pardon persons with direct connection to the president. In this sense, we are in the potential realm of Azari and Masket’s first type of constitutional crisis: ”The Constitution doesn’t say what to do.”
There is the clear caveat as noted, “except in Cases of Impeachment,” meaning that an officer of the federal government who is subject to impeachment cannot be prevented from being impeached by a pardon. The persons subject to impeachment include the president, vice president, members of the cabinet, and judges. So, the constitution does envision a scenario in which a president might seek to forgive a political ally in a court of law, but the Congress still can remove them from office. But it is worth noting, the pardon power check the judiciary and impeachment is a legislative act. In other word, impeachment is not for determining legal guilt or innocence and nor does it issue criminal or civil penalties. Rather, impeachment is a process to remove an office-holder from office due to their malfeasance.
Note: one only pardons someone who is guilty of something. So, if the president pardons himself, is that not an admission of guilt? What, then, would the Congress do? If a president essentially admits to pardonable offense, does that not fall into the rubric of “Treason, Bribery, or other high Crimes and Misdemeanors”? Would that not compel impeachment? Certainly a sizable chunk of the population would think so, but another chunk likely would not. And so we might get Azari and Masket’s third type of constitutional crisis: The Constitution tells us what to do, but it’s not politically feasible.
If anything, if President Trump were to pardon Don Jr., Mike Flynn, Jared Kushner, or whomever, I suspect that the spin will be: the president is simply protecting people loyal to him from the partisan attacks of the media (which is one of many reasons why his demonization of the media is dangerous).
Without a doubt, if the president pardons his familial inner circle or others linked to the Russia investigation as a way of preempting the investigation, or himself, it will be an abuse of his constitutional powers. The question at that point will be: will there be enough political will in the congressional GOP to act? My guess is that like McConnell’s breaking of constitutional norms and refusing to allow President Obama to name Scalia’s successor that enough Republicans will see such pardons as politically acceptable so that they will be allowed to stand.
If we were to get to such a place, it will be massive test for the GOP (both in terms of its voters and its leadership in congress). I fear, at the moment, that they will fail that test.At that point we will have one major political party endorsing an authoritarian abuse of power. That is, rather clearly, a violation of constitutional norms and a crisis.