Presidential Pardons and the Problem of Impunity
23 N.Y.U. Journal of Legislation and Public Policy __ (2021)
82 Pages Posted: 16 Nov 2020 Last revised: 23 Nov 2020
Date Written: November 11, 2020
This Article considers the reach of the President’s pardon power and its potential employment as one means of creating legal impunity for a President and his personal and political associates. It addresses, in particular, the possibility that a President might issue self-interested pardons to himself, family members, or political or business associates. The Article reviews the constitutional origins of the federal pardon power, and the law and practice of its use since the Founding era, and concludes:
A President cannot constitutionally pardon himself, though the point is untested. In theory, a President could resign, or under the Twenty-fifth Amendment withdraw temporarily from the office, transform the Vice President into the President or Acting President, and secure a pardon from the his former subordinate. But that seems improbable.
A President can pardon anyone but himself (both humans and corporations), and those pardons, once issued, are almost certainly unchallengeable and irrevocable. A presidential pardon can cover any (and perhaps all) federal crimes the beneficiary has ever committed, so long as such crimes occurred and were completed prior to the issuance of the pardon. A president cannot pardon crimes that have not yet been committed. Consequently, a pardon issued corruptly might itself constitute a crime that could not be pardoned.
The pardon power does not extend to state crimes or to any civil or administrative action brought by federal or state authorities. A presidential pardon cannot block congressional investigations. Finally, because a pardon effectively erases the Fifth Amendment privilege as to offenses covered by the pardon, it might make it easier for criminal and civil investigative authorities and Congress to compel testimony from the person pardoned.
Therefore, presidential pardons could inconvenience, but could not prevent, thorough investigations of the private and public actions of a former President or his associates. The Article concludes by recommending a thorough, but judicious, use of available investigative avenues to inquire into well-founded allegations of wrongful behavior by former presidents and their personal and political associates.
Keywords: Pardons, pardon power, presidential pardon power, self-pardon, impunity, impeachment, constitutional law, impunity, Fifth Amendment
JEL Classification: K10, K14
Suggested Citation: Suggested Citation