The author is a Harvard professor of constitutional law
If, as Alexander Pope mused in 1711, "to err is human, forgiven, divine," then the constitutional pardon – the prerogative of forgiveness – should be beyond doubt.
Instead, an ungodly US president who seems unable to forgive has apparently twisted this instrument of mercy into yet another grave threat to the rule of law. Donald Trump's recent perversion power could leave a damaging legacy: a blueprint for manipulating this royal prerogative to put presidents and their friends above the law. But there is a means: investigation and possible prosecution. We must treat all obstacles to justice that we expose for the crimes that they are.
It is important to distinguish between two types of corrupt pardons. There are those who are despicable only for their internal immorality – they can appeal to American war criminals (the Blackwater contractors convicted of a massacre) and corrupt politicians (the former Illinois Governor Rod Blagojevich, who tried to get a seat in the Senate sell, was convicted) give free rein. and relatives (the convicted father of Mr. Trump's son-in-law, Charles Kushner). There are others who pose structural threats by putting the president and his constituency above the law and thwarting investigations into wrongdoing.
Pardons in the former category, as despicable as they are, not only come under the power of the president, but rarely constitute crimes. They should be strongly condemned for signaling that corruption and cruelty are permissible and, in America, rewarded will. Future presidents should raise the standards for their own pardons and, in the words of the Supreme Court, take seriously their duty to "maintain the nation's confidence that (a president) will not abuse pardon power." But the only real bulwark against these kinds of pardons – aside from changing the Constitution to remove the power to enact them – is to avoid the election of lazy presidents.
Mr Trump's grant of pardon to close advisers Paul Manafort and Roger Stone falls into a specific and far more dangerous category. These pardons appear to be the latest moves that may have actually hampered the investigation of crimes that Mr Trump's close associates have been convicted of. Put simply, these pardons could potentially constitute a criminal obstruction to justice or bribery.
The fear that a president could abuse the pardon to obstruct the judiciary is anything but new. At the Virginia Congress of 1788 to ratify the Constitution, George Mason feared that the President might use power to “pardon crimes. . . advise by himself. "He also predicted that potential pardons could be used as a hindrance to" stop the investigation and prevent the discovery. "
But James Madison replied that any president who abused the pardon would be swiftly impeached and deported. Mr Trump has already been charged – although the Republican-controlled Senate has voted not to remove him from office. The likelihood of a second impeachment before Joe Biden's inauguration is slim. The Constitution, however, explicitly provides for a different solution – post-presidency criminal prosecution – whereby an accused president "must nonetheless be liable and subject to charge, trial, judgment and punishment under the law".
Pardons, used as a means of obstructing justice, are an integral part of criminal behavior precisely because the President has the formal authority to grant them. The breadth of that power enables a president to use it as an instrument of crime. If pardons, used as a reward for silence, could be invalidated by the courts, they would be worthless to their recipients and useless to any system of interfering with a formal investigation.
The result is not denying the pardons, but rather exposing a president to prosecution for the way he installed them. If Mr Trump misuses pardons to protect himself and important allies from justice, it could be charged as a criminal obstruction of justice, as an abuse of constitutional grace to achieve an illegal goal.
In a poetic turn of justice, such obstructive pardons would facilitate the prosecution of a president who granted them. If Messrs Manafort and Stone, as well as former National Security Adviser Michael Flynn, were asked to testify against Mr. Trump, their pardons would make it much harder for them to invoke their constitutional right of silence to avoid blaming themselves.
If Mr Trump has used his pardon to commit crimes, he will face criminal prosecution. Otherwise, a dangerous precedent would be set for future administrations. In future investigations into the president's wrongdoing, key witnesses could routinely protect the boss in hopes of (or in exchange for) immunity. Worse still, future presidents could treat their term as a four-year license to commit heinous crimes. As Mason feared in 1788, the president would have "established a monarchy and destroyed the republic."
There is still a chance that Mr Trump will try to apologize to himself. But, as Richard Nixon's Justice Department suggested in 1974, self-forgiveness is not within the constitutional power of the president. Self-forgiveness twists the text of the constitution – you don't "allow yourself" things – and violates the centuries-old principle that no one can be trusted to judge their own case. It would also exempt any president from ignoring federal criminal law and functionally placing the holder outside the law while in office.
Perhaps the only way to limit this potential abuse of the power of pardon would be to prosecute an ex-president who tries to use it on himself. If Mr Trump is to forgive himself, the next attorney general must eagerly investigate him and prosecute all federal crimes exposed. Forgiveness may be divine, but it cannot justify wrongdoing. Democracy and the rule of law require that we hold everyone accountable.