Richard Nixon

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.

The Quandary of Strange Bedfellows

Although launching cruise missiles into Syria will not likely lead to all-out war, President Obama has correctly decided to seek Congressional approval before undertaking such action. There is, however, a caveat. And we should not confuse the issues.

Seeking the approval of Congress is in keeping with the War Powers Resolution of 1973—legislation specifically designed to keep military intervention in check. It was precipitated by the actions of President Nixon during the Vietnam War. Although Congress overrode Nixon’s veto of the legislation, thus making it law, there are legitimate questions as to the constitutionality of the Resolution. Nonetheless, that is not really the issue.

Secretary of State, John Kerry, used forceful but accurate language to condemn the Syrian government’s use of chemical weapons against its own civilians. That same language would be justifiable regardless of who the victims were. But…

Truth and trust are preciously rare commodities these days. Thanks to President George W. Bush, Secretary of State Colin Powell, and the failures of the intelligence community regarding Saddam Hussein’s non-existent weapons of mass destruction, many people are demanding more evidence before accepting the judgment against Syrian President Assad.

Also, and more to the point, the people of the United States are tired of war. And it does not matter whether we have a Democratic or Republican president. The people want to have a voice when it comes to military action abroad.

One might be tempted to argue that the people’s will is articulated by its representatives in Congress. However, at least in the House of Representatives, that is no longer the case. The present House simply does not represent the majority of the people. By every statistical analysis, it represents an ever-shrinking and extreme minority, the result of ideological gerrymandering. And yet, there’s no place else to turn.

Like many others, I trust, or at least want to trust, President Obama. I do not trust the House of Representatives, and I am ambivalent about the Senate. But I am also realistic enough to recognize that we have not yet emerged from the moral bankruptcy of the Bush Administration.

If the allegations against Assad’s government are true, the international community must respond. This is not merely a question of how history will judge us, nor can it be reduced to a measure of our war-weariness. If the world is to escape the ever-tightening grip of violence and death, there must be limits to how we resolve conflicts. To paraphrase President Obama, there are lines no one can cross. But how to respond? Thus, the truism about politics and religion.

The Progressive Change Campaign Committee ( is a prime example. This organization has fought against the House of Representatives’ attempts to dismantle the U.S. Government and its cold disregard for the common good. On more than one occasion it has sounded the alarm about the Tea Party’s stranglehold on the Republican Party, and it has documented the House’ failure to represent the majority of Americans. Today it has stated its support of President Obama’s decision to consult Congress over a response to Syria. It has, however, let the bedfellow syndrome cloud its language. PCCC’s Sunday email reads:

“Yesterday, the president made the right decision by asking the people's representatives in Congress to vote on whether our nation uses military action in Syria.”

Regardless of how one views the War Powers Resolution; regardless of one’s attitude toward war in general; regardless of one’s fatigue after more than a decade at war, Obama’s decision may, indeed, be the right one. The American people should at least have a voice in this and future military actions. But let us not conclude that the present House is the “people’s representatives”. It is not.

I applaud President Obama’s decision to consult Congress. But make no mistake. For anyone interested in “truth, justice and the American way,” getting in bed with the current House of Representatives is not good politics.