Rein In Trump's Pardon Power
Before it's too late... And presidential immunity, while we're at it.... Take it to Congress, to states, even to the streets.
It’s January 20, 2029.
Everyone’s been through a lot. You’ve been through a lot. The country is battered, many of its institutions corrupted or destroyed. Americans are poorer, the nation isolated internationally, but we survived. Donald Trump did not seek a third term; Republicans nominated JD Vance to succeed him, and he lost. Trump has overseen a grudging, petty, but ultimately peaceful transition to a new administration. Just a few more hours, until he’s off to convalesce at Mar a Lago. A bit too rosy of a picture? Perhaps, but stick with me.
One big reason things didn’t turn out worse is that Democrats, under belated but intense pressure from their grassroots, did not shrink entirely from oversight and accountability. They gave clear and detailed shape to Trump’s corruption—to how he enriched himself with public dollars as Americans lost savings, jobs, and homes—and the citizenry rebelled. The incoming Democratic president (pick your fave) has vowed to look backwards and forward in the coming months, because, as it turns out, the neck swivels.
But then, at 11:59 a.m., the outgoing White House announces Trump has issued sweeping pardons. Blanket. Including one for himself.
What is to be done? What use is there in looking backward if nobody will ever pay a legal price for what they’ve stolen or vandalized?
Thanks to the leadership of
and the DOJ in Exile, the incoming administration and congressional Democrats are armed with thick dossiers of information (mostly public, but helpfully compiled) about the pardonees and their crimes. Some of that information will prove to be of interest to state prosecutors, but most will not.The incoming attorney general is intent upon investigating Trump’s criminal conduct anyhow, taking the view that a president can not pardon himself. The Constitution gives the president the power to grant pardons, not adorn one as body armor for himself. No man can be judge or jury in his own case. But Trump enjoys “official acts immunity,” which makes compiling evidence of his criminal conduct very difficult. And after four years of accepting bribes he is cash rich and ready to litigate the self-pardon for years. Until he dies, if necessary…which, if it happens quickly enough, will moot the question.
Heeding the advice of influential liberal intellectuals like
, Democrats in Congress establish a Truth and Reconciliation Commission……but its work is slow and the public is, thus, principally focused on how well and quickly Democrats can put the country back together again. Republicans—unchastened, but good at faking it—begin to regroup, just as they did after defeats 2009, and 2021. People who should rightly be on trial or in prison begin to bleed back into polite society, and soon back into positions of right-wing influence.
How did we not anticipate that our shared interest in accountability, so overdue yet so essential, could be thwarted with the stroke of a pen?
IT’S MILLER CRIME
There are only two ways to stop something like this scenario from transpiring: Make it so Trump can’t issue patently corrupt pardons, or, failing that, make it so he might choose not to.
And the only way to achieve either of those goals is to build a large and sustained movement to abridge the pardon power as currently enshrined in the Constitution.
That work should be done with an eye toward future accountability, but it should begin now, as a strategic front in the pro-democracy movement, to end the current constitutional crisis.
Trump today stands in defiance of a Supreme Court order, and likely in contempt of federal district courts. It’s only because he feigns compliance that the gravity of the crisis hasn’t sunk in widely. But at some point or another we’ll come out of limbo. Either Trump will be forced to comply in earnest, or he’ll choose to defy in earnest.
A district court judge has found probable cause that the Trump administration committed the crime of contempt of court. Most shrewd observers suspect that the contemner—the person who faces imprisonment for orchestrating defiance of a court order—is Stephen Miller, the monstrous twerp-fascist who conceived of Trump’s lawless immigrant-expulsion regime. As proceedings continue, the stand-off between the executive and judiciary will escalate. Trump would likely (and corruptly) order DOJ not to try a contempt case against Miller or anyone else in his administration; a judge might then invoke his or her prerogative to appoint outside counsel to stand in for the prosecution; DOJ might challenge the constitutionality of this judicial power…. But it’s also conceivable that at some point before the end of Trump’s term, Miller or another official might be convicted of criminal contempt, only for Trump to pardon the offense, thereby sanctioning all future contumacious behavior.
This would surely amount to impeachable conduct; but insofar as Republicans in Congress would decline to remove Trump from office under any circumstances, it wouldn’t be remediable. As currently written, the Constitution gives the president “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” That’s all it says. In corrupt hands, it inscribes the means to destroy the United States.
The only way to deprive Trump of such power, and constrain his appointees, would be to amend the Constitution.
NEG YOUR PARDON
Whenever anyone in American politics or law suggests amending the Constitution, political elites, including many liberals, roll their eyes. We know better. We know how hard it is to amend the Constitution. We know we’ll never live to see another amendment ratified, let alone one with partisan implications.
They aren’t wrong about the difficulty, but they make failure self-fulfilling.
By the same token, politicians who advance doomed constitutional amendments in order to increase their profiles or raise money contribute to cynicism over the whole notion of constitutional reform. We’re much, much likelier expand the Supreme Court by statute and overturn Heller than we are to modify the second amendment, as Gavin Newsom once claimed to want. When Democratic candidates say we should amend the Constitution to overturn Citizens United, activists cheer, but nothing happens.
None of that should deter the pro-democracy movement from trying to build mass support for amending the pardon power now, in the midst of a civic emergency. In a dream scenario, the movement succeeds, and Trump loses the unconditional pardon power before he can abuse it to bring the whole Constitution down. In a likelier scenario, where the movement “fails” to accomplish its nominal goal, a Fight The Power or (sorry) Neg Your Pardon movement could still surface a great deal of ongoing corruption, and use the corruption as a political wedge. Do Republicans really want to be caught opposing sensible limits on the pardon power? No autopardons? No preemptive pardons? No pardons without acceptance of guilt or proof of innocence? Do they want to stand for the idea that Trump should be able to pardon himself for accepting bribes? That he should enjoy blanket immunity to commit official crimes, and then pardon himself for the non-official ones? Well, that’s up to them.
Getting something like this off the ground would require three things: first, a respected House Democrat and a resected Senate Democrat (along with, hopefully, 256 cosponsors) to write and introduce the amendment, then use procedural privileges to force repeated votes on it. Second, a campaign to advance the idea in all 50 states. Third, aspiring Democratic presidential candidates to endorse it.
The cause is urgent and morally righteous. It would also be popular. And, as a matter of realpolitik, it would provide Democrats at all levels (including those wannabe presidents) an opportunity to distance themselves from Joe Biden. Republicans will bellow whataboutism: Whatabout Biden, who preemptively pardoned his family? As they hop aboard, Democrats could preempt those cries. It was wrong of Gerald Ford to preemptively pardon Richard Nixon; it was wrong of Biden to preemptively pardon family members1. It would definitely be wrong of Trump to preemptively pardon people who committed real crimes on his behalf. And so it should go no further. Enough is enough and never again.
The language of this 28th amendment would obviously be negotiable. I like the ideas I sketched out above. I’d also like it to reverse the Supreme Court holding in Trump v. United States or at least codify the Amy Coney Barrett dissent, so that future prosecutors could use official actions to build their cases, and introduce them as evidence at trial. But the most important thing is to get the idea circulating, and quickly.
As
wrote recently, “incompetence makes itself evident to the voting public without needing too much help from the opposition. But helping the public understand patrimonialism’s other, even greater vulnerability—corruption—requires relentless messaging.”He added, “driving a strategic, coordinated message against Trump’s corruption is exactly what the opposition has not done. Instead, it has reacted to whatever is in the day’s news. By responding to daily fire drills and running in circles, it has failed to drive any message at all.”
This is true. It has been an animating frustration of mine for years. Let’s finally do something to fix it.
By broadcasting his malicious intent, Trump put Biden in a tough spot. I understand why he did it. But it was still a mistake.
The reform of the pardon MUST be paired with some means of insulating prosecutorial decisions. This is certainly valuable in holding the current administration accountable but there also must be protection from retribution with every swing of the political pendulum. How can we restructure the DoJ to insure its independence?
I think one of the easiest tweaks to the pardon power would be to suspend it from October 1 of a presidential election year until the inauguration the following year. Almost all of the worst pardons occur during that period anyway.
Another tweak would be that Congress can override an act of clemency by a 2/3rds vote in both houses within 90 days of its issuance.
And finally, I would make all presidents ineligible for executive clemency for any federal crime, no matter who is doing the pardoning, whether the crime is official or unofficial, or when the crime takes place. Anyone who has ever wielded the pardon power cannot benefit from it, including vice presidents who temporarily assume the powers of the presidency, eg Dick Cheney and Kamala Harris