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Opinion | Charles Fried

When a presidential pardon is illegal

Nicholas Kamm/AFP/Getty Images/File/AFP/Getty Images

In 1865, in Ex parte Garland, the Supreme Court ruled that the president’s pardon power, granted in Article II, Section 2 of the Constitution, was absolute: Once exercised it could not be reversed, and therefore, because of his presidential pardon, former Confederate Senator Augustus Garland was beyond the reach of punishment or disqualifications for his past crimes. In that case, President Andrew Johnson, against the evident wishes of the Republican Reconstruction Congress, had pardoned Garland, one of many former Confederate politicians.

It is a logical entailment of that ruling that the pardon power cannot be subject to prior legal constraints or limits on its valid exercise. Thus, though President Trump has blatantly ignored the procedures established to examine the propriety and circumstances of its exercise (there is in the Justice Department a pardon attorney who, with a staff, documents the relevant grounds for granting a pardon and makes recommendations based on past practice regarding its exercise), his pardon, once granted, as in the case of Sheriff Joseph Arpaio, cannot be undone. When President Clinton, on his last day in office, pardoned the financier Marc Rich, whose wife had been a generous contributor to Clinton’s campaigns, there was grumbling that this was a pardon bought and paid for, and that it was therefore corrupt. Still, it could not be undone. Nor could Clinton be impeached for granting it, precisely and only because it was granted as he was leaving office. In short, there is no federal offense so grave that it cannot be pardoned, and no motive, however corrupt, that can preclude that power.


That is why it is so very dangerous when Trump dangles the suggestion of a pardon before his underlings for whatever crime they might commit in spending money and taking property to build a border wall for which Congress has denied him the funds and authority. It promises a pardon before the fact, using it as leverage. This is the essence of tyranny and lawlessness. Nothing this norm-defying man has done or threatened cuts as close to the principle that we are a government of laws. In 1689, in its Bill of Rights, the British Parliament complained that the king had acted tyrannically, “by exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament; [and] by levying money for and to the use of the Crown by pretense of prerogative for other time and in other manner than the same was granted by Parliament.” Here was the model for our American conception of the rule of law.

The president can act only through his officers. He cannot personally, physically occupy land illegally taken to build his wall; he cannot personally pay the suppliers of material and personally dig the trenches. People must be found to do these things for him, and if those willing to do them have been assured — explicitly or by tweets or by winks and nods — that they may commit any crime with impunity, be it misappropriation of funds, or false imprisonment — then the president is in truth and fact an absolute dictator. Trump seems to sense this in his very language. Unlike most presidents, he often speaks in the first person singular. This is not just a grammatical oddity; the customary use of the first person plural is a tribute to the fact that the president exercises a regular and established power — not personal will.


President Obama set a bad, antidemocratic example, ruling by executive order when frustrated by Congress in immigration and health care matters. At least those decrees protected rather than stamped on people. This president from the start turned to executive orders to exclude visa holders and asylum seekers, to separate children from their parents, to spend money Congress refused to give him, even threatening to take property for a purpose Congress would not endorse. These are more like the acts of monarchical tyranny that Parliament complained about in 1689. And these are the very decrees that the hinted-at pardons would protect if carried out by an obedient bureaucracy.


But there is a vital check: The president may be judged to have used his power tyrannically or corruptly, and he must face the constitutional consequences. The president cannot accept bribes and then pardon the payor with impunity; he cannot, with impunity, direct officers to use facilities owned by him personally and to pay for that use with public funds; he cannot shoot someone in the middle of Fifth Avenue, as he himself has said, with impunity. All such acts are the very essence of the abuse of power, the corrupt use of power, and it is precisely for that that the power of impeachment was ordained.


The German word fuehrer means leader, and Article II of the Constitution gives us not a leader, but a president, whose mandate it is to “take care that the laws be faithfully executed.”

Charles Fried teaches constitutional law at Harvard Law School. He was solicitor general of the United States from 1985 to 1989, and is a member of Republicans for the Rule of Law.