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An Unappreciated Constraint on the President's Pardon Power

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An Unappreciated Constraint on the President's Pardon Power University of Connecticut OpenCommons@UConn Connecticut Law Review School of Law 2020 An Unappreciated Constraint on the President’s Pardon Power Aaron Rappaport Follow this and additional works at: https://opencommons.uconn.edu/law_review Recommended Citation Rappaport, Aaron, "An Unappreciated Constraint on the President’s Pardon Power" (2020). Connecticut Law Review. 444. https://opencommons.uconn.edu/law_review/444 CONNECTICUT LAW REVIEW VOLUME 52 APRIL 2020 NUMBER 1 Article An Unappreciated Constraint on the President’s Pardon Power AARON RAPPAPORT Most commentators assume that, except for the few restrictions expressly mentioned in the U.S. Constitution, the President’s pardon power is unlimited. This Paper suggests that this common view is mistaken in at least one unexpected way. Presidential pardons must satisfy a modest procedural rule: they must list the specific crimes covered by the pardon. The “specificity requirement” means that vague and broadly worded pardons are invalid. This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. This Paper’s argument rests on an originalist understanding of the constitutional text, an approach that the Supreme Court has repeatedly endorsed as the appropriate method for interpreting the Pardon Clause. That approach leaves little doubt that a specificity requirement is a binding limitation on the President’s pardon power. The final part of this Paper examines the ramifications of the specificity requirement for federal criminal investigations, particularly investigations into Russia’s interference in the 2016 presidential election. The specificity requirement may prove surprisingly significant in this latter context, since it both raises the political costs, and narrows the legal scope, of any pardon the President might grant to former campaign advisors. In effect, the requirement strengthens the hand of investigators, increasing the likelihood that defendants will cooperate with the prosecution. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law. 271 ARTICLE CONTENTS INTRODUCTION .................................................................................... 273 I. THE PARDON POWER ....................................................................... 276 II. PARDONS AND THE COMMON LAW ............................................. 280 A. PARDONS BEFORE THE GLORIOUS REVOLUTION ........................... 281 B. LORD DANBY AND L’AFFAIRE FRANCAISE ................................... 284 C. ROYAL PREROGATIVES AFTER THE GLORIOUS REVOLUTION ......... 287 D. THE SPECIFICITY REQUIREMENT AND THE COMMON LAW ............. 288 E. THE COMMON LAW AND THE CONSTITUTION................................ 293 III. OBJECTIONS .................................................................................... 295 A. THE TEXTUAL OBJECTION ........................................................... 296 B. THE OBJECTION FROM HISTORICAL PRACTICE .............................. 300 IV. DONALD TRUMP AND THE SPECIFICITY REQUIREMENT........ 312 CONCLUSION ........................................................................................ 315 An Unappreciated Constraint on the President’s Pardon Power AARON RAPPAPORT * INTRODUCTION Not since President Ford pardoned Richard Nixon has the pardon power been the focus of so much media and public attention. As Donald Trump’s legal troubles have multiplied, speculation has intensified that the President may attempt to use the power to insulate associates and advisors from criminal liability.1 A pardon, it is believed, would eliminate the risk of federal prosecution, undermining the leverage prosecutors have to persuade these men to offer possibly incriminating information about the President. To be sure, a federal pardon would not eliminate all pressure on Trump’s associates. Federal pardons, after all, insulate individuals only from federal prosecutions, not state charges. The New York State Attorney General, among others, has been looking into allegations of wrongdoing by some of Trump’s associates.2 Nonetheless, eliminating federal exposure would mitigate the potential threats against these individuals and, depending on the specific facts of the cases, might eliminate criminal liability entirely. In this sense, a federal pardon could pose a significant roadblock to prosecutors * Professor of Law, University of California, Hastings College of the Law. Thanks to Mark Osler, Ian Williams, and Zachary Price for comments on an earlier version of this Article. Special thanks to Erin Barlow, Jennifer Bentley, Deborah Brundy, Ally Girouard, Sarah Glendon, Brenly Pereira, and Andrew Johnson for exceptional research assistance. 1 Even more controversially, the President might attempt to pardon himself. That possibility raises distinct legal issues that have been addressed in other papers. See, e.g., Brian C. Kalt, Pardon Me?: The Constitutional Case Against Self-Pardons, 106 YALE L.J. 779, 781 (1996) (discussing the constitutionality of a presidential self-pardon through a historical, textual, structural, and doctrinal analysis); Robert Nida & Rebecca L. Spiro, The President as His Own Judge and Jury: A Legal Analysis of the Presidential Self-Pardon Power, 52 OKLA. L. REV. 197, 222 (1999) (analyzing the self-pardon from various perspectives to conclude that the self-pardon is constitutional); Mark Strasser, The Limits of the Clemency Power on Pardons, Retributivists, and the United States Constitution, 41 BRANDEIS L.J. 85, 149–52 (2002) (discussing the presidential self-pardon). As such, the lawfulness of self-pardons is not directly addressed below. 2 See, e.g., Natasha Bertrand, New York Prosecutors May Pose a Bigger Threat to Trump than Mueller, ATLANTIC (Aug. 24, 2018), https://www.theatlantic.com/politics/archive/2018/08/new-york- prosecutors-allen-weisselberg-trump/568516/; David A. Fahrenthold, New York Attorney General Moves to Open a State Criminal Tax Investigation into Michael Cohen, WASH. POST (Aug. 23, 2018), https://www.washingtonpost.com/politics/new-york-attorney-general-moves-to-open-a-state-criminal- tax-investigation-into-michael-cohen/2018/08/23/a320754e-a746-11e8-8fac- 12e98c13528d_story.html?noredirect=on&utm_term=.ddfade1542f5. 274 CONNECTICUT LAW REVIEW [Vol. 52:1 hoping to unravel what precisely happened during the presidential election of 2016. If Trump pardons one or more of these individuals, could an argument be made that these pardons are invalid? The common view is “no.” The general assumption is that the President’s pardon power is virtually unlimited. The President might suffer political fallout from granting immunity, but the pardons themselves are widely seen as beyond judicial review. That is true even if those pardons are issued for corrupt or self-interested reasons.3 This Paper suggests that this common view is mistaken in at least one unexpected way. Though the substantive scope of the pardon power is broad, one modest procedural rule must be followed: the pardon must identify the specific crimes covered by the order.4 The “specificity requirement,” as I will call it, means that vague and broadly worded pardons are not valid.5 The claim that a specificity requirement exists may sound doubtful, since it runs against the widespread view that the President’s pardon power is unfettered. It also seems to run against historical practice. President Ford’s pardon of Nixon was but the most famous example of a vague and general pardon that brought a federal prosecution to a halt.6 According to its terms, Nixon’s pardon applied to “all offenses against the United States” during his administration; the wrongdoings were never specified.7 Even beyond this famous (or, depending on one’s viewpoint, infamous) example, the existence of a specificity requirement has never been acknowledged by the Supreme Court.8 3 Several commentators have suggested that a pardon issued for corrupt reasons could result in a separate charge against the President for obstruction of justice. See, e.g., Meghan Keneally, Yes, Trump Can Pardon Manafort and Cohen, But It Would Be a ‘Legal and Strategic Error,’ Expert Says, ABC NEWS (Aug. 23, 2018, 7:23 PM), https://abcnews.go.com/Politics/trump-pardon-manafort-cohen-legal- strategic-error-expert/story?id=57355504; James D. Robenalt, The Pardon Power Can Be Used to Obstruct Justice. Just Ask Richard Nixon, HIST. NEWS NETWORK (Apr. 4, 2018), https://historynewsnetwork.org/article/168686. For a somewhat more skeptical view, see Daniel J. Hemel & Eric A. Posner, Presidential Obstruction of Justice, 106 CALIF. L. REV. 1277, 1281–82 (2018). However, even if separate obstruction charges could be brought, the pardons themselves would likely be upheld and remain binding. 4 This is a procedural constraint in the sense that it imposes restrictions on how pardons are structured, rather than on who or what can be pardoned. 5 This is not the first paper to mention a specificity requirement. In a piece published after the Watergate controversy, Hugh Macgill explores the possibility of such a requirement. See Hugh C. Macgill, The Nixon Pardon: Limits on the Benign Prerogative, 7 CONN. L. REV. 56, 74–84 (1974) (discussing several possible constraints on the President’s pardon power, including the specificity requirement). This Article builds and expands upon that work. 6 The significance of this pardon is discussed in more depth later in this Paper. See
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