November 29, 2020 – These questions surrounding the presidential pardon power are being tossed around by pundits across America. But what is the scope and breadth of this presidential pardon power – can he pardon himself, can he pardon for specific crimes such as tax evasion, what is the scope and breadth of the pardon power? Surely these questions must weigh in for the current president who has claimed to be under IRS “audit” since before he took office in 2017 – and certainly should be the foremost question on everyone’s mind when the NY Times reported Trump paid only $750 in federal tax to the IRS in 2017 – despite his substantial income-producing real estate holdings and other assets. First let’s look at the scope of the pardon power.
How Expansive is the Presidential Pardon Power?
The president gets his pardon power from the U.S. Constitution…
Under the U.S. Constitution, Article II, Section 2, Clause 1,the president has the pardon or clemency power referred to as the Pardon Clause. The clause states the president:
“shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
At first blush, this clause seems quite encompassing, yet, there are still many limitations. A presidential pardon can only be given for a federal crime – not state crimes – nor civil lawsuits. And to safeguard the office of the presidency itself, the founders excluded pardons for “impeachment” – that is where the subject of the impeachment has been tried and convicted by Congress. Such would have been the case had Trump actually been tried and convicted in the Senate. Clearly that did not happen, and a presidential conviction has never happened in US history. Outside of this caveat, it appears that Congress has no right to intervene in cases of presidential pardon.
Can the Presidential Pardon Power be Used Prospectively?
The question of whether a sitting president can use his pardon power “before” someone has been charged with a crime has been the subject of much discussion.
However, the most famous example of “Prospective Pardoning,” in the modern era is that of President Richard Nixon. In the 1970’s, President Nixon was facing impeachment for having a connection to the Watergate Hotel break-in, where Republican operatives were trying to steal information from the Democratic National Committee Headquarters in the Watergate hotel. The goal of that burglary was to confiscate election-related strategy information, while also planting “illegal listening devices” in the Democratic headquarters. Because the Watergate burglars were caught, Nixon was implicated. But before Nixon could be impeached, he resigned and his vice-president at the time, Gerald Ford took over the presidency. President Gerald Ford then issued a pardon of Richard Nixon one month after Nixon’s resignation. As a result of Nixon’s quick maneuvering, he was never impeached nor charged with a crime. He had the temerity to resign first, with what appears to be an “assurance” that he would be pardoned shortly thereafter. This is the most well-known example of a “prospective pardon” – and a potential hand that of Donald Trump and his current vice-president, could potentially play anytime anytime before January 20, 2021.
What does the Office of Legal Counsel (OLC) Got to Do With Pardons?
The Office of Legal Counsel – is a branch of the Department of Justice working under the auspices of the US Attorney General – making the issuing opinions subject to the ‘interpretation’ – usually to the benefit of the party in power – and by definition, the president. These opinions have weighed in for every administration since the OLC was created in 1934 – but gaining much notoriety in the years from Nixon to Trump. The Nixon opinions which encompass the Watergate era, weigh in loud and clear during the Robert Mueller Investigation of Trump and his administration. Special Counsel Mueller, appointed by Rod Rosenstein Deputy Attorney General, ushered in the investigation into whether Donald Trump – engaged in a conspiracy – colluding with the Russians amidst the 2016 elections to smear his opponent, Hillary Clinton. That investigation also included review of all action by Trump and his associates that could be construed as Obstruction of Justice up to, and including the Investigation by the Special Counsel. Most troubling, is the Trump administration’s reluctance to comply with requests by Robert Mueller, producing far less documents than were requested by Mueller, and Trump refusing to testify under oath. Yet, much of the bobbing and weaving by the Trump administration to thwart the investigation, find its basis of opposition in OLC opinions – specifically, the 2000 OLC opinion that a sitting president cannot be indicted or subject to criminal prosecution.
OLC Opinions Give Every Gov’t Agency its Marching Orders…
As every prosecutor knows, it’s hard to hold wrongdoers accountable when witnesses refuse to testify and evidence has been destroyed or suppressed. We saw this play out in real time between Trump and Mueller – and it certainly didn’t help that Mueller was an “employee/consultant” of the very department – the Justice Department – that he was employed by to do his investigation. Whether Mueller held the title “special counsel” or special consultant – he was subject to firing if he prodded too closely to Trump and his allies, and he and his team knew it. Bottom line, it’s hard to do a full and impartial investigation when you are investigating the very person or entity who has the power to fire you. This is not a good scenario, making it quite apparent that the Special Counsel statute needs to be reviewed and reworked by a new administration and a new Congress, else we again risk the danger of repeating a travesty that could have presented with preventive legislation aimed at accountability, transparency to the American people. Yet, the purpose of the OLC is to get everyone on message, every government agency and consultant gets its marching orders from OLC opinions…including Robert Mueller.
Pardon Me, Pleas? Can a President Pardon Someone for Tax Evasion?
The answer to this query is straightforward. In 2017, President Obama pardoned baseball legend, San Francisco Giants, Hall of Famer, Willie McCovey – of none other than Tax Evasion charges. It appears that McCovey was sentenced two two years of probation and a fine of $5,000 for “not” reporting $33,000 of earned income back in 1989 – however that amount grew to an “additional: unreported amount of $70,000 – totaling approximately $103,000 which he admitted as part of his plea deal. The crime: falsifying federal income tax returns by not reporting “all” his earned income on his tax return. McCovey was 79 years old back in 2017 when the pardon took place. He died a year later in 2018. No doubt president Trump will be looking at this particular pardon very closely, at he clearly looks to minimize his tax exposure and any resultant penalties.
Can a President Pardon Himself?
For this issue, we have no historical account of a self-pardon by a sitting president – but we do have one of “governor” in 19th century rural America. In 1856, the “first” territorial governor, Isaac I. Stevens went through the motions to pardon himself, claiming to be working under the auspices of the President. The “governor” of the area which now comprises Washington state, had engaged in many questionable attempts to thwart the efforts of Judge Edward Lander who was readying to hear settlers claims of Stevens instituting martial law and imprisonment of settlers while under his governance. To further the outrage, Governor Stevens, more than once, had prevented the Judge from holding court – arresting him twice – and even imprisoning him with the settlers to prevent him from adjudicating their claims.
From some historical accounts, Stevens was both a “territorial governor” and a military commander of the region, suspected settlers who had taken Indian wives to be colluding with the Indians during some of the conflicts. Stevens believed these “settlers” were thwarting his plans to take control over the Indians and the region, to which he declared martial law, and those that did not comply were imprisoned without a right to trial.
Specifically, the “governor’s” numerous attempts to subvert justice and the judicial system took aim at Judge Landers who was trying to put the rule of law back into practice. Eventually, Landers got out of prison, and was able to eventually hold court finding Governor Stevens to have engaged in abuse of power, in addition to finding him in contempt of contempt of court – sentencing him to pay a fine of $50 – a value of approximately $1700 today.
While continuing to subvert justice, Stevens pardoned himself claiming he was working on behalf of and under the auspices of the president, and thereby issues himself a pardon – well before the president had acquired any knowledge of this dubious self-pardon. To date, no documents have been located to indicate whether his self-pardon on behalf of himself and supposedly the president was effective or not – there is only evidence that he was censured by the territorial legislature and US Senate, and reprimanded by the secretary of State. That is the only of very few examples of attempts at self-pardon that can be found in the annals of U.S. history.
The Question Remains, Can Trump Self-Pardon or Does he Need Vice-Presidential Assistance?
So the question whether Trump can pardon himself has only been attempted by a governor more than a century and a half ago, that didn’t work out too well for him – and it is largely doubted that a president can do the same.
Because “Self-pardon” of a president would surely defeat the Impeachment Clause which was designated to Congress in the US Constitution as a the sole remedy to gather evidence and try a president, self-pardoning would seem to “conflict” with the intent and purpose of that provision.
What About the Vice-President Being Elevated to President to Effectuate a Pardon?
It is clear that Richard Nixon had elevated Gerald Ford from House Minority to Leader to Vice-President of the United States in 1973 via the 25th Amendment, when his own Vice-President, Spiro Agnew resigned, pleading to a felony count of tax evasion amid political corruption. That particular vice-president was subsequently disbarred. Yet, just eight months later, President Richard Nixon would resign amid the infamous Watergate break-in scandal, and within one month of his departure, a new Vice-President was elevated to president who faithfully executed a pardon to his former boss – Nixon. It was clear that Gerald Ford became the vice-president at the request of Richard Nixon, and after Nixon’s choreographed resignation, became the only unelected president of the United States – the 38th president. Ford was elevated to the office of president under the most dubious of situations, and his pardon he issues, effectively cleared his former boss of wrongdoing and any monetary penalties he may have faced. But the price of that pardon ensured that Gerald Ford never was elected in his own right for another term. He was defeated by Jimmy Carter who became the 39th president of the United States. Quite a lesson in the history of Pardons, and for those who agree to pardon – a prospective lesson perhaps for Mike Pence. If he should agree to takes the reigns before the end of the Trump term with an eye toward pardoning his former boss, he may like Gerald Ford, imperil their own political future, taking his place in the annals of pardons for presidents by successor contemporaries – for those who resign amidst scandal and disgrace.
For information on what the Mueller Report and what his investigation found on: Trump, his administration, and the continuing battles over subpoenas and testimony, read:
The Mueller Report: NO Collusion…But What About Obstruction?
Mary Kay Elloian, MBA, JD, Esq.
The Legal Edition-Legal, Business & Policy News
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