Potential Pardons = Potential Constitutional Crisis

The pardon issue could be a serious inflection point.

constitution-preamble-quill-penI 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:

  1. The Constitution doesn’t say what to do.
  2. The Constitution’s meaning is in question.
  3. The Constitution tells us what to do, but it’s not politically feasible.
  4. 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.

 

 

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Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. James in Bremerton says:

    Only guilty people start talking about pardons. The Mueller probe is just beginning. Ken Starr went at it for 8 years. Everyone in Trump’s orbit is suspect. Each tweet is testimony. Each lie and denial and craven threat are words that will be used against him.

    Mueller is sitting on a ton bricks. But he daersn’t drop them all. Just enough to get Congress to impeach, then drop the rest once he’s out. This limits the pardon damage, which does nothing to help the organized crime syndicate in state court.

    This is just beginning, and look what it’s doing to the pretend “president.”

  2. MarkedMan says:

    A side question: does anyone know if you can search through the archives for your own comments? I’m curious because I know I (and others) talked about Trump pardoning Flynn and other corrupt officials several months ago, but I can’t remember exactly what was said.

  3. Mark Ivey says:

    Please let him Pardon himself. I got popcorn stockpiled

  4. @MarkedMan: A well parsed Google search might work.

  5. dmhlt says:

    @MarkedMan:
    Try this Google search:
    markedman trump flynn pardon site:outsidethebeltway.com

  6. TM01 says:

    So we’re concerned that PDT might ignore a court order.
    Yet we’re NOT concerned when said court clearly overreaches its authority, assuming the duties of the Executive branch.

    And we’re never concerned when the federal government assumes powers that should rest with the States.

    IOW, something only becomes a Constitutional Crisis because #Trump.

  7. michael reynolds says:

    The immediate purpose of Trump’s tweet on pardons was to signal to Manafort not to roll over. Manafort is in a world of trouble with money-laundering scams and secret accounts and shell corporations as far as the eye can see. He was in hock to a Russian Oligarch for 17 million dollars before he became campaign chief and grandly declared he wouldn’t take a salary. Well, yeah, if you’ve already been paid 17 million. . .

    It’s yet more obstruction of justice.

    The notion of self-pardon is logically absurd. It would mean that a POTUS could sit up in the Oval, open the window and start shooting pedestrians. Then pardon himself. Then do it again. He could order bombs dropped on Manhattan and pardon himself. He could decide to pardon everyone accused of tax evasion. More to the point – since there may be Republicans reading this and they are rather slow, it would mean Obama could have admitted he was Kenyan, then pardoned himself for the fraud. Relying on partisan political means to cope is rather insufficient to deal with a psychopath like Trump. But there is no way in hell this could conceivably be part of the Founders’ intentions.

  8. Just 'nutha ig'nint cracker says:

    Alas, I don’t fear that the GOP Congressional Leadership will “fail the test,” I’m confident of it. In many ways, they already have.

    And not only the GOP Congress, but roughly 43% of half of the nation (allowing for how many don’t vote) have already failed. If you include not voting as failure, well over half the country has failed.

  9. michael reynolds says:

    @TM01:
    Read that three times trying to find some logic. Perhaps you could add footnotes explaining WTF you thought that drivel was supposed to mean?

  10. @TM01: A real answer to your post is that yes, those things can result in constitutional crisis–it is not linked to the executive branch only.

    However, what you are doing, I suspect, is typical talk-radio-esque griping about long-term evolution in our system as well as sectarian claims about the government ought to work. Those are very different from what I am describing.

    As such, @michael reynolds has a point.

  11. al-Alameda says:

    @TM01:

    So we’re concerned that PDT might ignore a court order.
    Yet we’re NOT concerned when said court clearly overreaches its authority, assuming the duties of the Executive branch.
    And we’re never concerned when the federal government assumes powers that should rest with the States.
    IOW, something only becomes a Constitutional Crisis because #Trump.

    A few points:
    (1) I agree that America did a profoundly stupid and embarrassing thing when it installed Donald Trump as the president.

    (2) I do not see how the investigation of the issues surrounding Trump and possible Russian influence over him and certain Russian tampering with our election interferes with powers that belong to the states?

    (3) If Trump himself raises the issue of pardons for (essentially) everyone in his family and circle of associates why doesn’t if fall directly to #Trump for creating a potential constitutional crisis? Who else created these potential problems?

  12. OzarkHillbilly says:

    @TM01: I see you went to the FOX School of Constitutional Law. I also see you had a 1.8 GPA.

  13. Ben Wolf says:

    @TM01: States being over-ridden by the Federal government isn’t an example of a constitutional crisis, it’s the constitution working as designed.

  14. Kylopod says:

    What the term “constitutional crisis” has always suggested to me is the Game of Thrones-y scenario in which a political actor exercises power that may be within their abilities but which is arguably an illegitimate use of their authority. For instance, during the 2000 post-election controversy there was a moment in which members of Florida’s GOP legislature were threatening to nullify the results of the recount if it had ended in Gore’s favor. If that had happened, I think it would have qualified as a constitutional crisis.

  15. TM01 says:

    So after the 9th circuit ruled against the travel ban, usurping the executives power, what would have been so Crisis if Trump had come out and said the judiciary had overstepped its bounds, and that he would ignore the ban even as he appealed to SCOTUS?

    Where was the Crisis when Obama ignored court orders, issuing around 2000 work permits AFTER a court had issued an injunction against doing exactly that?

  16. @TM01:

    So after the 9th circuit ruled against the travel ban, usurping the executives power, what would have been so Crisis if Trump had come out and said the judiciary had overstepped its bounds, and that he would ignore the ban even as he appealed to SCOTUS?

    Here’s the problem: that’s your opinion, but the reality is that the executive has to respect court rulings. Ultimately SCOTUS will decide and all effected actors will have to abide. That is the way it works.

    In regards to the second part, you will have to remind me what you are are talking about, although I will say I am really tired of “whataboutism” and the general tendency of Trump defenders to want to make everything about either Obama or Hillary, neither of whom are currently president.

  17. MarkedMan says:

    @dmhlt: thanks!

  18. MarkedMan says:

    So it appears that five weeks into his presidency, the possibility of his pardon ending members of his administration were already being discussed on this site. We should start playing the stock market…

  19. MarkedMan says:

    @MarkedMan: in fact, by March 9th I was ski goggles our resident lawyers here if a president could pardon someone before they were convicted of a crime

  20. gVOR08 says:

    A legal question:

    It appears Trump’s organization may be deeply involved in money laundering, violations of the Corrupt Foreign Practices Act, probably tax fraud, and god knows what else. It may he possible that Mueller, or New York authorities could bankrupt Trump by going after his various corporate entities. Can Trump pardon a corporation? Against a civil action?

  21. michael reynolds says:

    @gVOR08:
    Excellent question. I wonder if this comes under ‘corporations are people, too?”

  22. Mister Bluster says:

    @TM0.00000000000000000000000000000000001:..IOW, something only becomes a Constitutional Crisis because #Trump

    You and Trump are the Viceroys of Victimhood.
    In July of 1974 there was all kinds of talk about a Constitutional crisis and speculation about what would happen if the Supreme Court ordered Nixon to turn over the tapes and he refused. Or what to do if he destroyed them.
    But you go ahead and whine and pout for your pervert REPUBLICAN President Pork Chop Pud.
    You might want to forward your legal theories to Chump’s team of ambulance chasers. I sure they will appreciate the help.

  23. Zachriel says:

    @gVOR08,

    A presidential pardon only applies to federal crimes, not to state violations.

  24. OzarkHillbilly says:

    @gVOR08:

    Can Trump pardon a corporation? Against a civil action?

    Can a corporation claim the 5th? Commit perjury? Go to jail? Not yet. Ergo, I think not.

  25. teve tor says:

    @michael reynolds: This is why the Founders established Impeachment.

  26. teve tor says:

    @Steven L. Taylor: From Wikipedia:

    Whataboutism is a propaganda technique formerly used by the Soviet Union in its dealings with the Western world, and subsequently used as a form of propaganda in post-Soviet Russia. When criticisms were leveled at the Soviet Union, the Soviet response would be “What about…” followed by an event in the Western world. It is a variant of tu quoque (appeal to hypocrisy), a logical fallacy that attempts to discredit an opponent’s position by charging them with hypocrisy without directly refuting or disproving their argument.

    It’s kinda appropriate that TM01 would be using a Soviet propaganda technique, since his side is getting instructions from Putin.

  27. teve tor says:

    @Mister Bluster: you’ve really got to get better with the blockquoting.

  28. MarkedMan says:

    And here we are several days into the president signaling to his criminal co-conspirators that if they stay silent he will just pardon them if they go down. And the Republican leadership is silent. If some thought I was hyperbolic over the past few years when I talked about the moral bankruptcy of the Republican Party and that any Republican official with a backbone had been driven from the party, well, what do you say now?

  29. TM01 says:

    Whataboutism:
    Holding Trump to a standard that has never been applied to other politicians, and then complaining when anyone brings up the fact that YOU have spent decades ignoring from other politicians what you claim Trump has done, this creating the atmosphere that brought about someone like Trump.

    From Clinton’s sexual deviancy and assaults, to AntiFA, to Kennedy’s actual deal making with the USSR, the Russian collision with US environmental groups, slaps on the wrist for Democrat tax cheats… And then coming out with your faux outage and pearl clutching about Trump allegedly doing what you’ve let others do for decades.

    Piss off.

  30. @TM01: You are doing it again. You are not defending Trump, you are deflecting.

  31. Bob The Arqubusier says:

    “Note: one only pardons someone who is guilty of something. So, if the president pardons himself, is that not an admission of guilt?”

    That was a major point of dispute when President Ford pardoned former President Nixon. That there are still arguments today over whether or not Nixon’s acceptance of the pardon was an admission of guilt proves that it is still a gray area.

    President George H. W. Bush’s pardon of Caspar Weinberger also raised similar questions, as Weinberger was under indictment but had yet to be tried. I do not believe that Weinberger ever admitted any guilt when he accepted his pardon.

  32. DrDaveT says:

    @Bob The Arqubusier:

    That was a major point of dispute when President Ford pardoned former President Nixon.

    No, it wasn’t. It was a major effort at spin by a few dedicated apologists, but there was no general confusion or dispute about either Nixon’s guilt or his implied admission of guilt.

  33. TM01 says:

    Not deflection.

    It’s playing by the left’s rules. I’m sick of the sanctimonious left pretending to be concerned about #MuhRussia when we have Obama himself telling Russia he’d have more flexibility after the election and silence from the left. We have Obama opening back channels to Iran and silence from the left. But #OMGTrump.

    Your rules.

    People on the right are just playing by them for a change.

  34. Gromitt Gunn says:

    @TM01: You say anti-fsscist like it’s a bad thing, and not a long proud righteous American tradition.

  35. Mister Bluster says:

    everybody’s

    a

    critic

  36. TM01 says:

    You Leftist turds celebrate when Obama admittedly singlehandedly changes a law and violates a court order, then sit around wringing your hands at what Trump might do, bloviating about a Constitutional Crisis. And then you say to stop comparing Trump to anyone else. Please. Just stop already.

  37. Ben Wolf says:

    @TM01:

    I’m sick of the sanctimonious left…

    Then you’re not making an argument, you’re lashing out in emotional distress. Not that plenty of people you consider “on the other side” don’t do the same, but two wrongs don’t make a right.

  38. Bob The Arqubusier says:

    @DrDaveT: Then, please, show Nixon’s admission of guilt. An explicit one, not one “implied.” Or Weinberger’s.

    The presidential pardoning power is plenary. (Sorry for the alliteration.) The only possible check on it would be impeachment (another plenary power), and that would not be preventative, but punitive. (More apologies for the alliteration.)

    The only way to prevent Trump from pardoning himself would be to amend the Constitution.

    And it’s amusing how 1) Trump can toss out an idle thought and make his enemies dance for days on end, and 2) Trump’s enemies still think that he can be bullied or shamed into changing his conduct.

  39. @TM01:

    Not deflection.

    It certainly isn’t an argument. The totality of your position is based on something someone else did. You have offered no positive support for Trump. nor have you offered any actual reason for your position in general.

    And, I would hasten to add, your “what about Obama (or Clinton)?” bit is vague and nonsensical.

  40. @TM01:

    You Leftist turds

    Classy and very persuasive.

    Now I see your point! Bravo.

  41. @Bob The Arqubusier:

    “Note: one only pardons someone who is guilty of something. So, if the president pardons himself, is that not an admission of guilt?”

    That was a major point of dispute when President Ford pardoned former President Nixon. That there are still arguments today over whether or not Nixon’s acceptance of the pardon was an admission of guilt proves that it is still a gray area.

    I did not say that the acceptance of the pardon is an admission of guilt. I am saying you typically pardon people who have done something that needs pardoning.

    One does not start talking pardons for obviously and unambiguously innocent people.

  42. @Bob The Arqubusier:

    Trump’s enemies still think that he can be bullied or shamed into changing his conduct.

    Being asked to be honest is not being bullied (nor is being asked to do his job).

    However, you are quite correct: the man has no shame.

  43. @TM01:

    when we have Obama himself telling Russia he’d have more flexibility after the election and silence from the left. We have Obama opening back channels to Iran and silence from the left.

    You seem to not understand the difference between a sitting president conducting foreign policy, and a campaign possibly colluding with a foreign power who interfered with our campaign process/

  44. OzarkHillbilly says:

    @TM01: Whine whine whine. If you could bottle it, it would be vinegar.

  45. al-Ameda says:

    @TM01:

    Holding Trump to a standard that has never been applied to other politicians, and then complaining when anyone brings up the fact that YOU have spent decades ignoring from other politicians what you claim Trump has done, this creating the atmosphere that brought about someone like Trump.

    From Clinton’s sexual deviancy and assaults, to AntiFA, to Kennedy’s actual deal making with the USSR, the Russian collision with US environmental groups, slaps on the wrist for Democrat tax cheats

    You do realize that Trump himself created the problems for which he and his associates are now being investigated for?

  46. al-Ameda says:

    @TM01:

    You Leftist turds celebrate when Obama admittedly singlehandedly changes a law and violates a court order, then sit around wringing your hands at what Trump might do, bloviating about a Constitutional Crisis. And then you say to stop comparing Trump to anyone else. Please. Just stop already.

    Well then.
    And to think that the commentariat and opinionista currently opine that Democrats should be reaching out to people such as yourself, you know, to try to better understand your anger and resentment.

  47. teve tor says:

    TM01 is saying 1) Trump is only as bad as the Clintons and 2) the Clintons are terrible.

    TM01, if I ever need defending, please stay out of it. You’re less competent than Scaramucci.

  48. teve tor says:

    Jennifer Rubin was talking about people like TM01 when she wrote this:

    Let’s dispense with the “Democrats are just as bad” defense. First, I don’t much care; we collectively face a party in charge of virtually the entire federal government and the vast majority of statehouses and governorships. It’s that party’s inner moral rot that must concern us for now. Second, it’s simply not true, and saying so reveals the origin of the problem — a “woe is me” sense of victimhood that grossly exaggerates the opposition’s ills and in turn justifies its own egregious political judgments and rhetoric. If the GOP had not become unhinged about the Clintons, would it have rationalized Trump as the lesser of two evils? Only in the crazed bubble of right-wing hysteria does an ethically challenged, moderate Democrat become a threat to Western civilization and Trump the salvation of America.

  49. Bob The Arqubusier says:

    @Steven L. Taylor: About 20 years ago, “shame” became a purely partisan issue when Bill Clinton refused to be shamed out of office, and his party stood behind them. Since then, it has been almost exclusively used against Republicans, with Democrats by and large immune to it — witness how many chances Anthony Weiner was given after each time he was (if you’ll pardon the expression) “exposed.”

    Similarly, “morality” has been denigrated and mocked for even longer — “you can’t impose your morality on other people,” contempt for the old mores and traditional values, and the like.

    So, is it any great surprise that a lot of people decided that they were going to vote for someone who was, by and large, immune to such attacks? After getting kicked in the teeth repeatedly, they might say “screw it” and decide to play by the same rules that have been used against them?

    As Kurt Schlichter said:

    We don’t like the new rules – I’d sure prefer a society where no one was getting attacked, having walked through the ruins of a country that took that path – but we normals didn’t choose the new rules. The left did. It gave us Ferguson, Middlebury College, Berkeley, and “Punch a Nazi” – which, conveniently for the left, translates as “punch normals.” And many of us have had personal experiences with this New Hate – jobs lost, hassles, and worse. Some scumbags at an anti-Trump rally attacked my friend and horribly injured his dog. His freaking dog.

    So when we start to adopt their rules, they’re shocked? Have they ever met human beings before? It’s not a surprise. It’s inevitable.

    Note that this was written before a former Bernie Sanders volunteer attempted to assassinate a whole pack of Republican members of Congress.

    So, Trump tosses out a Tweet or some idle speculation that sends his enemies into insane tizzies that wraps them up for hours or days while he goes about his business? Sounds like a formula for success.

    And if some people don’t find that “presidential” and cluck their disapproval? The response to them falls somewhere between “so what?” and “all the better.”

  50. Just 'nutha ig'nint cracker says:

    @TM01: Do you have any idea how embarrassed I feel for you when we have “he who shall not be named” posting in his cleaver disguise as Bob the Sockpuppet and not even he will give you an up vote?

    You said it best yourself: Please, just stop.

  51. @Bob The Arqubusier:

    Bill Clinton

    I stopped reading there.

  52. Bob The Arqubusier says:

    @Steven L. Taylor: Quelle surprise.

    I see a multitude of explanations.

    1) You reject the notion of learning from history, and delight in the thought of repeating it.

    2) You have no curiosity into the factors that led to people electing Trump, and want be just as astonished in 2020 when he’s re-elected as you were last November when he was elected.

    3) You have a rather peculiar sense of propriety that says it is far, far more offensive to mention the misdeeds of others than the misdeeds themselves.

    I could continue, but it’s pretty clear it would be wasted energy…

  53. Matt says:

    @Bob The Arqubusier: Trump was out there on the campaign trail calling on his supporters to commit violence against the left and that’s no big deal because he’s on your team. Some random nutjob lefty commits violence and suddenly they are the paragon of a Democrat to you…