The Pardon Power

In the waning days of the Trump administration, while many people seek to put behind them his now failed presidency, all eyes are on the pardons expected to flow from Trump's pen. These include himself, his children and even the rioters who: attempted to lay waste to the U.S. Capitol, execute the vice-president and speaker of the House, arrest other members of Congress, and overthrow democracy, itself. It seems, therefore, that we should examine the idea of pardons and presidential power.

The words of the Constitution are clear. It states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” However, words do not exist in a vacuum. They have both meaning and context. The Constitution defines the branches of government and delineates their powers.
But it is not a dictionary. Hence the necessity of understanding the meaning of words. Even so called “originalists” must know what words mean if one is to correctly interpret the Constitution.

Let’s look at the three possible pardons mentioned above. First, Trump cannot pardon himself. By its very definition, a pardon requires two parties—the offended and the offender. This has embedded its way into daily discourse and even the manners we teach our children. For example, when we accidentally bump into another person, we say, “Pardon me.” In other conversation, whether seriously or in jest or even in sarcasm, we frequently hear the expression, “I beg your pardon.”

In the second example, Trump is fully within his constitutional rights to pardon his children. But here there exist two caveats. You cannot pardon someone for an offense or crime that they did not commit. If Trump does pardon his children he is admitting that they committed crimes against the United States. The second caveat has never been challenged in court. And that is a blanket pardon. Since Trump’s children have not yet been charged with a crime, there is reason to doubt that he can pardon them. It has been done in the past, as in the case of Richard Nixon. But it was not challenged. Legally, it is difficult to comprehend how one can be pardoned, without knowing the offense. That should deter even the most conservative judges, in fact especially the most conservative of judges, from siding with Trump.

Considering the country’s current climate, the third example may be the most critical. Can Trump pardon those who participated in the capitol riots? Some have not yet been charged and they would fall under the second caveat regarding Trump’s children. Those who have been charged would seem to fall under Trump’s pardon purview as president. However, as you might guess, it is not that simple.

In criminal law the attorney-client privilege is bedrock. Still, it is automatically rendered non-existent if the attorney and client conspire to commit a crime. On January 6, 2021 Donald J. Trump incited an insurrection against the United States. As such, he is complicit in the crime of treason. By extension of the first argument that he cannot pardon himself, and in the same way that the attorney-client privilege evaporates when conspiring to commit a crime, Trump cannot pardon the people with whom he conspired to overthrow the United States of America.

The act of conspiring need not be explicit. Trump did not say, “Go take over the Capitol Building, hang Mike Pence, kill Nancy Pelosi and arrest members of Congress.” He did tell the mob to march to the Capitol Building and “fight like hell or you won’t have a country left.” That is an incitement to riot. It is the language of revolution, a call to insurrection. It is treason, plain and simple.

Regardless of whom Trump tries to pardon in the next few days, the Justice Department must proceed with charging and bringing to trial anyone who committed crimes. That includes the January 6 insurrectionists, Trump’s children and even Trump himself. If necessary, the courts will defend the constitution. The presidential pardon power has limits.