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Carrie Cordero: Alas, Trump’s lame-duck pardons will be legal

By Carrie Cordero Special to the Washington Post

President Donald Trump is reportedly considering whether to issue pre-emptive pardons for his adult children, his lawyer Rudy Giuliani and probably others before he leaves office on Jan. 20. He has already recently pardoned his former national security adviser, Michael Flynn, and commuted the sentence of his longtime political guru, Roger Stone. The prospect of more pardons in the next couple of months seems more likely than not.

But ultimately, there’s nothing anyone can do to stop – or even effectively challenge – Trump’s lame-duck pardons of his cronies. They will all stand. Presidential pardon authority is broad. And the Constitution does not provide a mechanism for its review.

Article II, Section 2 of the Constitution forms the basis of presidential pardon authority for federal offenses. Although the Constitution could, in theory, be amended to limit future uses of the pardon authority, this is unlikely. Congress could also, in theory, impeach Trump again between now and Inauguration Day and remove him from office to prevent his further use of this authority. Neither scenario is particularly plausible. As a practical matter, there is no avenue for Congress to limit Trump’s exercise of this power.

Nor will the judiciary provide a check on Trump’s exercise of pardon authority between now and the end of his term. To the extent they have provided even limited review in the past, federal courts have recognized that pardon authority is at the discretion of the executive. The only limits that have been recognized thus far are that the authority applies to federal offenses, not state crimes, and that it cannot be used to undo impeachments.

Based on how he has used the pardon authority throughout his one term, I would expect that pardons over the next seven weeks will fall into three general categories.

The first will aim to unravel the work of former special counsel Robert S. Mueller III in investigating Russian interference in the 2016 presidential election. Trump has already pardoned Flynn, who had pleaded guilty to lying to federal prosecutors in the context of that investigation, and commuted the sentence of Stone, who was convicted of lying under oath and witness tampering. The next could be Paul Manafort, Trump’s former campaign manager, for whom the president has publicly expressed sympathy. Manafort was convicted of conspiracy and fraud charges developed from Mueller’s investigation.

The second category is likely to involve favors to political allies or responses to celebrity lobbying. Trump has already done this, too: Look at his commutation of the sentence of former Illinois Democratic governor Rod Blagojevich, who had been a contestant on his reality TV show, or the pardon of Alice Johnson, whose cause was taken up by celebrity influencer Kim Kardashian.

The third category of potential pardons involves friends and family. These could include pre-emptive pardons for his children or for Giuliani, his close friend and persistent advocate. Who else might qualify for a pardon like this? Perhaps someone like Trump’s former political adviser, Stephen K. Bannon, currently the subject of federal fraud charges.

Although prior presidents in the modern era exercised the pardon authority in ways that generated scrutiny and controversy, Trump’s use of the power has been different. He has appeared to bypass the Office of the Pardon Attorney, a part of the Justice Department since an 1865 executive order. Instead, he has taken the country back to the 19th century, before that office existed, and handled many pardons without the input of legal professionals.

Indeed, it’s not clear that many of the Trump pardons have followed much of any internal deliberative process at all, even within the White House. Trump’s pardons are also overwhelmingly related to personal connections, a relative rarity for most presidents. Pardons concerning individuals too close to prior presidents have been harshly criticized; witness the scandal that enveloped President Bill Clinton’s decision to pardon Marc Rich, the ex-husband of a Clinton donor, hours before his term ended, or the controversy surrounding George H. W. Bush’s pardon of Iran-Contra figures. Trump, in contrast, has repeatedly applied his broadest powers to benefit those in his orbit.

The one potential pardon for which the outcome is uncertain is if Trump were to pardon himself and then later become subject to federal criminal prosecution. No U.S. president has previously attempted such a self-serving exercise of power. If Trump were to pardon himself and federal prosecutors never attempt to bring any charges against him, then the pardon will simply exist for history’s record. If, however, charges were brought against him for conduct unrelated to his presidency, such as past or future tax evasion or financial crimes, then the pardon would probably be the subject of litigation.

This novel chain of events would require an affirmative decision on the basis of a future administration’s Justice Department to choose to litigate the self-pardon. The outcome in the courts is uncertain. Invalidating his hypothetical self-pardon for acts that occurred while he was president would similarly require the Justice Department to bring that case against him to provide an avenue for the challenge.

Pardons of anyone else, though, no matter how unusual they might be, would be legally bulletproof. But because of how he has used the power, the historical legacy of Trump’s pardons will be the unshakable appearance of corruption. They will be an ugly chapter in his story.

Carrie Cordero is a senior fellow at the Center for a New American Security, former counsel to the assistant attorney general for national security and an adjunct professor at Georgetown Law.