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1/ So with self-pardon talk in the air, some thoughts about limits of the pardon power. I'm not a pardon attorney or a constitutional scholar, but I did go to the same law school as Josh Hawley! However, I did not stay in a Holiday Inn last night. With those caveats, read on... https://twitter.com/nytmike/status/1347272646715731975
2/ A self-pardon, of course, has never been attempted and has many skeptics. I want to ask a different question: when is a "pardon" a pardon?
3/ Presumably even if the pardon power is unbounded it applies only to pardons. The President can't issue a ham sandwich and call it a pardon. Not kosher! A pardon is a legal/constitutional instrument and surely has certain formal requirements.
4/ According to common law tradition, a pardon is an act of mercy by the head of state. According to Burdick vs. US (1915), a pardon carries an "admission of guilt". This is what Gerald Ford told himself to justify the very expansive and vague pardon he issued to Nixon.
5/ Ford issued "a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974"
6/ Could Trump (or his family) be pardoned for "any and all offenses" committed while in office? Before he was in office? After leaving office?
7/ While the Nixon pardon presents a troubling precedent in this regard, it was never litigated, so it's hard to say that the precedent is really binding. Moreover, can we really say that is what the Constitution demands? Or, if one is an originalist, what the Framers envisioned?
8/ A quick read of our good friend Lord Blackstone suggests that actually, such vague and ill-defined pardons are not, in fact, pardons. Blackstone's Commentaries on the Laws of England was the definitive common law treatise of the colonial era.
9/ (Blackstone actually thought the pardon power would not work in a democracy but let's set those aside. After all, this is a republic we're talking about.)
10/ Blackstone saw pardons as an expression of the King's mercy: "holding a court of equity in his own breast, to soften the rigor of the general law, in such criminal cases as merit an exemption from punishment"
11/ Yet for the pardon to be valid, certain conditions had to be met.
12/ First, as has been discussed by my friend @BrettschneiderC, "the king's pardon cannot be pleaded...so as to impede the inquiry, and stop the prosecution of great and notorious offenders" in cases of parliamentary impeachment.
13/ To Blackstone, "the setting up a pardon to be a bar of an impeachment defeats the whole use and effect of impeachments". This principle is codified in the U.S. Constitution: pardons apply "except in cases of impeachment"
14/ But wait, there's more. A pardon requires a truthful predicate. "It is a general rule, that, wherever it may reasonably be perfumed the king is deceived, the pardon is void".
15/ As a corollary -- and this is crucial -- valid pardons only apply to specific and particularly pled crimes.
16/ "General words have also a very imperfect effect in pardons. A pardon of all felonies will not pardon a conviction or attainder of felony; (for it is presumed the king knew not of those proceedings) but the conviction or attainder must be particularly mentioned"
17/ Blackstone, and presumably the Founders, would not have looked favorably upon the Nixon pardon. It was too general!
18/ What does all of this mean for Trump? It suggests that should he receive a pardon (from himself or from President Mike Pence) it must detail the specific offenses that are subject of the pardon.
19/ Any crimes not listed, in particularity, in the pardon would not be pardoned. Not because the President's pardon power is limited in some way, but BECAUSE THEY WOULD NOT A PREDICATE OF THE PARDON IN QUESTION.
20/ Put another way, a document that absolves guilt for any unenumerated crimes is not a pardon. This is not a limitation of the President's power. It is a limitation of legal form. A pardon must describe the acts for which mercy is being granted.
21/ There would be nothing stopping the President from pardoning Trump and his family for past federal crimes. But for such a pardon to have legal effect the crimes must be described for all to see.
22/ If Trump were to issue a self-pardon, this would amount to a kind of confession. If President Pence were to issue the pardon, it would reflect an acknowledgement by the state that specific crimes were committed.
23/ Again, this is not my opinion. If you have a problem with it, go talk to Lord Blackstone. And remember that he did not sleep in a Holiday Inn last night either. You can find his words here: https://avalon.law.yale.edu/18th_century/blackstone_bk4ch31.asp
24/ Special thanks to @BrettschneiderC who pointed me to the Blackstone document and for teaching me much about this topic. Please direct errors and omissions to the office of Josh Hawley. /end
25/ PS of course, like everything under the sun, there is a robust debate about the issuance of blanket pardons, eg: https://www.justsecurity.org/73900/are-blanket-pardons-constitutional-a-reply-to-bowman/
