Column: Trump Pardon Power: Any Constitutional Limits?

By Christopher Dunn

Presidential pardon fever has spiked over the last week following President Donald Trump’s pardon of conservative commentator Dinesh D’Souza, who had been convicted of federal finance violations, and Trump’s suggestion he also might pardon former Illinois governor Rod Blagojevich and lifestyle maestro Martha Stewart. Trump’s recent actions echo his pardon last August of Maricopa County Sheriff Joe Arpaio, whom a federal judge had convicted of criminal contempt for refusing to comply with the court’s order that he halt the unlawful detention of undocumented immigrants.

Last week’s developments come against the backdrop of an array of investigations into Trump, his family members, and close associates and of statements by Trump and his advisers claiming he has unlimited pardon authority. Going one step further, Trump on Monday tweeted, “I have the absolute right to PARDON myself.”

Given mounting apprehension that Trump will abuse the pardon authority, now is an opportune time to survey the key Supreme Court presidential-pardon decisions, which date back to the 19th century and early 20th. Taken together, these cases establish that the pardon authority indeed is quite broad but nonetheless is not without boundaries.

Origins and Early Scope

The Constitution’s Article II, which delineates executive power, sets out the pardon authority. In relevant part its Section 2 provides that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Thus, by its express terms, it contains two significant limitations: it does not authorize the president to pardon persons for state or other nonfederal offenses, and it does not protect against impeachment.

In terms of what it does authorize, the Supreme Court has made clear from the outset that the pardon power the Constitution confers on the president is co-extensive with the English king’s sweeping pardon power. In its most thorough review of the drafting of the Pardon Clause during the Constitutional Convention, the court explained that Article II’s language was the subject of no substantive debate and reflected “exactly what the king’s pardon was at common law.”

The Supreme Court’s broadest pronouncement about the scope of presidential pardon authority came shortly after the Civil War and will be of particular interest to lawyers. In 1865 Congress enacted a statute requiring that any attorney seeking to practice in federal court take an oath attesting, in substance, that he had never supported the Confederacy. A.H. Garland was an Arkansas lawyer who, when Congress acted, was a member of the Supreme Court bar and whom President Andrew Johnson had pardoned for any involvement in the insurrection.

Garland challenged the ban on his ability to practice in the federal courts. As an initial matter, the Supreme Court in Ex Parte Garland, 71 U.S. 333 (1866), held that the ban imposed retroactive punishment in violation of the ex post facto clause. The court then turned—in an analysis that some lower courts and commentators have discounted as dictum—to the effect of Garland’s presidential pardon. And that analysis sets out the broadest view of pardon authority the Supreme Court has ever offered:

The power thus conferred is unlimited, with the exception [for impeachment] stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the president is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.

Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

In light of these principles, the court readily concluded that, beyond the ex post facto violation, the statute impermissibly nullified the pardon. Beyond the seemingly unlimited view of pardon authority in Garland, this decision is important because it extends the effect of a pardon beyond relieving a person of a criminal sentence to secondary actions relating to the person’s underlying conduct—at least on the federal level.

Consistent with the broad view it expressed in Garland, the Supreme Court in 1925 rejected an effort to limit the pardon authority’s reach to persons convicted of federal statutory crimes. At issue in Ex Parte Grossman, 267 U.S. 87 (1925), was whether a Chicago man could be imprisoned for contempt of federal court (as was Sheriff Arpiao) notwithstanding President Calvin Coolidge having pardoned him for the contempt, the argument being that the Constitution’s pardon authority did not extend to conduct that thwarted the operation of the federal judiciary. The Supreme Court readily rejected this proposed restriction, relying on the understanding that the English king’s pardon authority encountered no such restriction.

The court likewise has taken an expansive view of the other half of the pardon authority: the right “to grant reprieves.” The scope of this part of the Pardon Clause first arose in 1855 in Ex Parte Wells, 59 U.S. 307 (1855), where a man sentenced to death for a District of Columbia murder accepted a pardon from President Millard Fillmore that conditioned the pardon on the man being imprisoned for the remainder of his life. The man then sought his release, arguing the pardon’s life sentence was invalid because the murder statute under which he was convicted did not authorize that specific sentence. Again relying on English practice, the court held that the “reprieves” part of the Pardon Clause allowed the president to impose any conditions he wished, given that the recipient could reject the conditional pardon. This holding drew an interesting dissent from Justice John McLean, who warned against giving the president free license to impose conditions Congress had not authorized as criminal penalties:

Who can foresee the excitements and convulsions which may arise in our future history? The struggle may be between a usurping executive and an incensed people. In such a struggle, this right, claimed by the executive, of substituting one punishment for another, under the pardoning power, may become dangerous to popular rights. It must be recollected that this power may be exercised, not only in capital cases, but also in misdemeanors, embracing all offences punished by the laws of congress. Banishment, or other modes of punishment, may be substituted and inflicted, at the discretion of the national executive.

Pardon Boundaries

Out of the modest number of Supreme Court decisions squarely addressing the pardon authority have emerged a few potential boundaries on the power. Oddly, at least at first blush, have been three cases that considered the effect of a presidential pardon that a defendant either chose not to present or to reject. In 1833 the court decided United States v. Wilson, 32 U.S. 150 (1833), a case involving a criminal defendant sentenced to death for attempted robbery. President Andrew Jackson pardoned him, but the defendant—for reasons unexplained—refused to present the pardon to the sentencing court. Viewing the pardon as a private acted communicated only to the person pardoned, the Supreme Court ruled that the failure to present the pardon rendered it meaningless to the proceedings, just as would the failure to adduce any other piece of evidence:

It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown, and cannot be acted on.

Nearly a century later came an unusual case in President Woodrow Wilson pardoned a newspaper editor who had invoked his Fifth Amendment rights to resist testifying before a federal grand jury. But the editor refused to accept the pardon—seemingly issued only to force him to testify—and continued to invoke his Fifth Amendment rights. In Burdick v. United States, 236 U.S. 79 (1915), decided in 1915, the Supreme Court upheld his right to do so, effectively nullifying the pardon. In so holding, the Court reasoned that some might prefer to suffer the consequences of criminal prosecution rather live with the confession of guilt implicit in acceptance of a pardon:

Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected,-preferring to be the victim of the law rather than its acknowledged transgressor,-preferring death even to such certain infamy.

Twelve years later, however, the Supreme Court refused to apply the holding of Burdick and did not even acknowledge Wilson in a case in which a man sentenced to death in Alaska sought to evade the effect of a pardon. Though it did not present a similar Fifth Amendment issue as in Burdick, the Court used sweeping language in Biddle v. Perovich, 274 U.S. 480 (1927), to suggest the recipient’s consent, in that case at least, had no effect on the force of the pardon.

A final limitation the Supreme Court has recognized involves the ability of nonfederal authorities to take pardoned conduct into account when sentencing defendants for criminal violations of state law. In Carlesi v. State of New York, 233 U.S. 51 (1914), decided in 1914, the defendant had been convicted of a New York criminal offense and given a longer prison sentence under a New York statute that enhanced sentences for those with prior convictions. In this instance, the prior conviction was for a federal offense for which the defendant had received a pardon from President Theodore Roosevelt, and the defendant argued that the enhanced sentence impermissibly penalized the pardoned conduct. Without so much as a mention of the sweeping language it had used in the 1866 Garlanddecision pronouncing that a presidential pardon “blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence,” the Supreme Court summarily rejected the argument. Rather, according to the court, this was an instance where “taking into consideration a prior offense committed against the United States after pardon under the circumstances stated was not in any degree a punishment for the prior crime, but was simply an exercise by the state of a local power within its exclusive cognizance.”

Looking Forward

Given the text of the Pardon Clause and the key Supreme Court decisions, the president’s pardon authority is fairly understood now to be extensive but not boundless. Most significantly, the president cannot use the power to pardon to immunize himself from impeachment nor can he shield himself or others from state prosecutions or enhanced penalties imposed by states for pardoned offenses. He also may not be able, at least in some circumstances, to impose a pardon on an unwilling recipient, depriving the president of the ability to use the pardon authority tactically against a perceived adversary.

Nonetheless, the relatively few Supreme Court cases squarely addressing the contours of the pardon authority and the fact the court has confronted the issue so little in modern times create an uncertain landscape. But we have every reason to believe the Supreme Court may soon be called upon to revisit the scope of the Constitution’s pardon power.

This column originally appeared in The New York Law Journal on June 6, 2018.