<\/p>\n
This is <\/em>Executive Dysfunction<\/em><\/a>, a newsletter that highlights one under-the-radar story about how Trump is changing the law\u2014or how the law is pushing back\u2014and keeps you posted on the latest from Slate\u2019s Jurisprudence team. <\/em>Click here<\/em><\/a> to receive it in your inbox each week.<\/em><\/p>\n President Donald Trump has been taking what feels like an Oprah Winfrey\u2013style<\/a> approach with his pardon power: All you Jan. 6 rioters<\/a>, you get a pardon! And all you folks who helped subvert the 2020 election<\/a> for me, you get a pardon! And what the hell, that crypto billionaire<\/a> charged with a felony, you also get a pardon! All in all, Trump has issued about 1,600 pardons since the start of his second term. Last week, the Wall Street Journal reported<\/a> that Trump has even told his staff he will issue preemptive<\/em> pardons for them in 2028 before he\u2019s slated to exit the White House.<\/p>\n No former U.S. president has exercised his pardon power quite like Trump has. In fact, he\u2019s even outdone his full first-term numbers, when Trump issued fewer than 250 pardons and commutations. The Wall Street Journal estimated<\/a> that to date Trump has issued six times that number over the first 15 months of his second term. And he apparently has no intention of slowing down, with administration officials telling WSJ the president has repeatedly \u201craised the specter of pardons with White House aides and other administration officials, particularly when staff have suggested they could face prosecution or congressional investigations over decisions.\u201d It\u2019s become a running joke within the White House, as Trump has promised he will pardon anyone who came within 200 feet of the Oval Office.<\/p>\n Trump is wielding the pardon power with full impunity, aided by Supreme Court rulings that have affirmed the presidential pardon authority as \u201cunlimited,\u201d<\/a> and left little to no room for congressional oversight. The only exceptions are in cases of impeachment and for state criminal offenses. This has essentially inspired Trump to wield pardons as a tool of political influence, as he pardons people facing serious federal criminal charges and who may have otherwise faced prison time. Now, these folks have a new lease on life, all thanks to the president, who expects unflinching loyalty in return.<\/p>\n To understand what risks Trump\u2019s mass pardons create and what Congress can do to slow, if not outright stop, Trump, I spoke with Frank Bowman. He\u2019s a law professor at the University of Missouri, a former federal prosecutor, and a pardon expert. He\u2019s the author of a forthcoming book Pardons: Discretionary Clemency and the Rule of Law in Britain and America 1066\u20132026,<\/em> all about the history of U.S. presidential pardons and the power they hold.<\/p>\n Here\u2019s our conversation, edited and condensed for clarity.<\/p>\n Shirin Ali: What\u2019s been your impression of Trump\u2019s approach to the presidential pardon?<\/strong><\/p>\n Frank Bowman: <\/strong>One has to see Trump\u2019s use of the pardon power in the context of his<\/p>\n general attempt to undermine the rule of law and establish a sort of autocratic form of presidential governance. His uses of pardon power fit in with, for example, his progressive destruction of the Department of Justice as a meaningful law enforcement agency, and his transformation of it into an agency whose dual purposes are essentially to protect his friends or people who share his business interests, and to punish his enemies. We\u2019ve seen that in a whole variety of contexts, essentially as Trump disabled large swaths of the DOJ\u2019s enforcement capacity, particularly in the areas of white collar crime and political corruption, to the benefit of people who are political adherents of Mr. Trump, or are, in the case of cryptocurrency offenders<\/a>, people who are actually in the same business as the Trump family. Or in the case of finance, people who are directly contributing to the Trump family wealth.<\/p>\n You have one side of Trump\u2019s second-term behavior, where he\u2019s essentially hamstrung the Department of Justice at the front end of the criminal prosecution and investigation process, and then the pardon power, as he\u2019s used it so far, is twinned with that. Trump has used the pardon power to excuse people who perhaps have already been prosecuted, or are in the course of being prosecuted for offenses. These are people that, again, are his political supporters, who share his economic interests, or for some reason, catch his attention.<\/p>\n You have to see Trump\u2019s misuses of the pardon power in context of this overall transformation of the federal criminal justice process into essentially a personalized area of presidential control. The other instances of this, of course, began on his first day in office, when he issued pardons to all the Jan. 6 rioters and insurrectionists. Some months later, he preemptively pardoned 77 people who haven\u2019t yet been charged, but certainly could be, for their roles in the effort to overturn the results of the 2020 election. These are people who were in some cases literally his co-conspirators in former special counsel Jack Smith\u2019s election interference criminal case.<\/p>\n It\u2019s in this vein that you have to see his most recent comments in the White House that he\u2019s going to pardon everybody within 200 feet of the Oval Office. In other words, what he\u2019s saying is, If you folks commit crimes on my behalf, don\u2019t worry about any criminal consequences. I\u2019ll simply pardon you all at the end<\/em>. He\u2019s creating a whole permission structure for illegality, as long as it\u2019s illegality that helps him and of which he approves.<\/p>\n Trump has suggested to his staff that if they carry out his orders, even if unlawful, he will pardon them. This sounds like a blatant manipulation tactic\u2014what do you make of it?<\/strong><\/p>\n All of that is made possible by the Supreme Court. If one looks back on fairly recent American history, Richard Nixon dangled pardons in front of the various Watergate conspirators, directly and indirectly. It was obviously considered both wrong in the general sense and criminally prosecutable. That practice by Nixon of dangling pardons was in fact one of the grounds on which the House Judiciary Committee voted to impeach him. The fact that at that time everyone conceived of this kind of behavior as fairly overt obstruction of justice and possibly criminally prosecutable for the president himself is surely at least one of the reasons why Gerald Ford felt it appropriate to issue Nixon a pardon after he left office. He widely understood that he was potentially liable for a whole array of conduct that was both impeachable and prosecutable. At that point, to stop the mouths of potential witnesses, Nixon offering pardons was a criminal offense of obstruction of justice.<\/p>\n However, what happened a couple of years ago is that the United States Supreme Court in Trump v. United States<\/em> extended completely unprecedented immunity from criminal prosecution to the president and made that immunity absolute. What it characterizes, again, completely without precedent, as core powers of the presidency among which it lists pardons. Essentially, as of 2024 the Supreme Court has said any use by the president of the pardon power, even overtly corrupt and indeed criminal uses of the pardon power, cannot result in criminal liability to him.<\/p>\n Trump also knows, or thinks he knows, based on the failures of two impeachments to result in his conviction in the Senate, that he is essentially immune for an impeachment even for overtly criminal conduct. He knows that he can do something that Richard Nixon could not. When Nixon dangled these pardons back in the 1970s, he did so in extreme secrecy, knowing that if it ever came out it would certainly be impeachable, and it might very well be a criminal offense. There was considerable deterrence against this kind of behavior, but Trump is in a different world, one where the Supreme Court has given him permission to commit crimes if they involve pardons and his own political party has essentially given him permission to commit impeachable offenses because they won\u2019t vote to convict him. He is at liberty to throw around promises of pardons for any kind of prospective criminal behavior by his aides and associates in the knowledge that nothing\u2019s going to happen to him.<\/p>\n Despite the Supreme Court\u2019s sweeping presidential immunity decision, can Congress do anything about how Trump\u2019s using his pardon power?<\/strong><\/p>\n Well, understand that regardless of the sad political reality, which is to say, the congressional Republican Party is so enthralled by Trump that it will not vote to impeach, even if he overtly commits crimes. I mean, that\u2019s a sad political reality, but it doesn\u2019t change the constitutional law of impeachment. Is it an abuse of the pardon power to pardon the past conduct of your criminal co-conspirators or to promise pardons for the commission of future crimes? Is that impeachable? Of course it is.<\/p>\n That being so, Congress certainly has the power to investigate, if that\u2019s what the president\u2019s doing. Congress today, if it wanted to, could investigate the uses and promises to use the pardon power of the president. Now they won\u2019t do it of course, because both chambers of Congress are controlled by Republicans. However, Democrats, if they gain a majority in either or both houses, I think it\u2019s incumbent on them to investigate this pretty unapologetically. They should investigate these potential criminal misuses of pardon power as part of their oversight authority and through their power to inquire into impeachable conduct.<\/p>\n Former President Joe Biden issued a slew of pardons on his way out of the White House, including for his son, other family members, and even members of the House committee that investigated the Jan. 6 attack on the Capitol. Did he essentially open the door for Trump to abuse the presidential pardon power?<\/strong><\/p>\n I understood Biden\u2019s impetus to issue preemptive pardons for members of his family and for a number of other people, like the Jan. 6 committee, Dr. Anthony Fauci, and Gen. Mark Milley. Trump and his surrogates were openly promising efforts to bring criminal charges against members of the Biden administration and others for things which were plainly not criminal, just simple retribution for political opposition. One understood Biden\u2019s disposition to try to protect his own family and other folks who were simply doing what public servants should do, and while you had active promises from the incoming presidential administration of Mr. Trump that they were going to misuse the criminal justice system, I think it was a bad idea.<\/p>\n For one, I think it indicated a really insufficient amount of confidence in the criminal justice system to screen out totally baseless prosecutions, recognizing that even getting investigated, even if you\u2019ve done nothing wrong, is a tremendously burdensome process in terms of reputation, time, and money. It\u2019s a form of harassment, even if it\u2019s ultimately not successful in securing the prosecution and I understand that. I also understand Biden\u2019s impetus to try to spare people even that degree of embarrassment, expansive inconvenience, and so forth. But I thought at the time, and I think at least so far events have proven me correct, that efforts to try to charge people with noncrimes are very unlikely to succeed. We see this in the James Comey and Letitia James cases, where the justice system just spit out retaliatory, baseless prosecutions against Trump\u2019s enemies. Grand juries and judges are simply throwing them out and I suspected that this would be the case. I think Biden should have had more faith in the system\u2019s ability to deal with this kind of stuff.<\/p>\n My second reason for not approving of these preemptive pardons is precisely that they create at least an excuse for Trump to do worse. They create a precedent, where Trump being Trump, he would not need, but he would absolutely use, along with his supporters to justify his own use of preemptive pardons to protect people around him who really had committed crimes. I was concerned that Biden was creating a precedent that would be abused and I think in that respect, I was correct. I think Biden made a grievous error in issuing preemptive pardons\u2014understandable, but a mistake.<\/p>\n Presidential pardons don\u2019t apply to state crimes, so is one avenue out of Trump\u2019s abuse of power to rely on states to pursue justice against the people he has already pardoned and those he may in the future?\u00a0<\/strong><\/p>\n You\u2019re certainly right that the presidential pardon power does not extend to state criminal offenses. Trump purported to pardon Tina Peters, a county clerk in Colorado who tried to<\/p>\n mess with the state\u2019s accounting system. Colorado courts recently just waived that away, correctly saying, <\/em>\u201cSorry, you can\u2019t do that.\u201d And it\u2019s as plain as anything in the law that Trump can\u2019t do that. So yes, it is possible for states to bring state criminal actions against people who have received federal pardons. The tricky bit there, however, is the collection of evidence. If you take a look at the events in Minneapolis, you have ICE agents who shot and killed people, conduct which might well be a crime under state law, and which Minnesota authorities are investigating. However, a lot of the evidence of those offenses is in the hands of federal authorities who are refusing to turn it over. At least so long as Trump remains in office, there are going to be difficulties in collecting evidence, and even after he leaves office, there certainly would be concerns that relevant evidence of certain kinds of crimes would be lost or even consciously destroyed.<\/p>\n That concern becomes exacerbated by a recent opinion by the Justice Department proclaiming the Presidential Records Act, which requires that presidential records be retained and remain the property of the United States\u2014those need not be turned over by the president when he leaves office.<\/a> If you\u2019re a state and you want to prosecute a federal official for some things that they\u2019ve done that amounts to a state crime, but Trump has pardoned them, they\u2019re going to be evidentiary obstacles.<\/p>\n Another obstacle is that many of the kinds of crimes that you might want to prosecute somebody for and committed by a federal official during the Trump administration may not be state crimes.<\/p>\n