President Trump and his lawyers have discussed whether he could pardon his relatives and aides to undercut, or even end, the special counsel’s investigation into charges that his campaign colluded with Russia to influence the 2016 election, The Washington Post reported on Thursday night.
There’s no question that with a stroke of his pen, Mr. Trump can shield his son Donald Trump Jr., his son-in-law, Jared Kushner, and other close associates from potential prosecution. Despite the uproar that would set off, we know by now that Mr. Trump loves the grand gesture, whatever the consequences. Besides, his family is at stake.
While his authority to pardon is crystal clear, a crucial, threatening, legal ambiguity should make him think twice about using this authority.
The Constitution gives the president “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The framers had sound reasons for bestowing that authority. As Alexander Hamilton explained, criminal law in the late 18th century was so severe that without the pardon power to soften it, “justice would wear a countenance too sanguinary and cruel.”
But could a pardon be a criminal abuse of power? Some would argue that would contradict the founders’ vision of unlimited pardon authority. If a president sold pardons for cash, though, that would violate the federal bribery statute. And if a president can be prosecuted for exchanging pardons for bribes, then it follows that the broad and unreviewable nature of the pardon power does not shield the president from criminal liability for abusing it.