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Why It Might Be Impossible To Overturn A Presidential Pardon

This is the Trump Docket, where we track some of the most important legal cases of the Trump presidency and how their results could shape presidential power. Questions, comments, or thoughts about cases to cover? Email us here.

If the American president has a superpower, it might be the ability to grant pardons. With the stroke of a pen, the president can wipe away the consequences of a federal criminal conviction, without having to ask permission from Congress or prepare for a battle in the courts. In the past, presidents have used this power in a variety of sweeping and controversial ways, perhaps most famously when Gerald Ford pardoned his predecessor, Richard Nixon, for any crimes he might have committed while in office.

But President Trump has an undeniably expansive and unusual view of the pardon power. He has declared that he has the ability to pardon himself, but that question is far from settled, in part because no other president has tried to do it. And his recent refusal to rule out a pardon for his former campaign chair, Paul Manafort, who tanked a plea deal with special counsel Robert Mueller, has prompted speculation about whether Trump is considering pardoning Manafort or other subjects of the Russia investigation.

Of course, Trump has yet to pardon Manafort (or himself). But an ongoing case involving Trump’s pardon of Joe Arpaio, the controversial former Arizona sheriff (we’ve added the case to our Trump Docket data in the latest update), does raise important questions about limits on a president’s ability to grant pardons. This case offers a sneak peek into the kinds of arguments that could be made if Trump issues a pardon to someone like Manafort. But it also shows why, as long as he doesn’t pardon himself, asking the courts to overrule Trump’s pardons may be a stretch, since the pardon was arguably designed to be a boundless power, with only Congress and the voters as a check on its abuse. “This authority is pretty explicitly given to the president away from the courts,” Steve Vladeck, a law professor at the University of Texas, Austin, told me. “It wouldn’t be worth all that much if the courts had the power on a case-by-case basis to adjudicate whether individual pardons were invalid.”

You may recall that in August 2017, Trump announced that he was pardoning Arpaio, who was known for his hardline immigration enforcement tactics as sheriff. At the time, Arpaio had been convicted of contempt of court after he refused to comply with a federal court’s order to stop racially profiling Latinos during patrols. The pardon was disturbing to many legal experts, who were concerned it had stripped the court of the only mechanism by which it can enforce its decisions, leaving it unable to fulfill its constitutional obligations to people whose rights were violated.

If Arpaio had simply accepted his pardon and moved on, the story might have ended there. But he took the unusual step of petitioning the judge in his case, Susan Bolton, to vacate his conviction. People who have been pardoned don’t typically try to have their criminal records erased — the pardon absolves them of all the consequences of a crime but doesn’t change the fact that there was a conviction — but Arpaio argued that since he hadn’t yet been sentenced, the conviction should also be wiped from his record. Several advocates and law professors saw an opening and filed amicus briefs asking Bolton to cancel Arpaio’s pardon on the grounds that a pardon can’t be used to absolve officials who infringe on others’ constitutional rights. “A president couldn’t pardon all white people for a specific crime but not people of color, because that would violate the Equal Protection Clause,” said Aditi Juneja, a spokesperson for Protect Democracy, one of the advocacy groups challenging Arpaio’s pardon. “Similarly, the pardon power is constrained by other parts of the Constitution.”

In her ruling last fall, Bolton said the pardon was valid and refused to further engage with the question of whether the pardon should be overruled. That said, she did also refuse to vacate Arpaio’s conviction, saying that the pardon removes punishment, but doesn’t, in the words of a previous ruling, “blot out guilt.” Arpaio appealed her decision, and the case is now pending in the 9th U.S. Circuit Court of Appeals (the president’s least favorite circuit court), where a new set of judges will soon decide whether to take the question of the constitutionality of Arpaio’s pardon more seriously.

Pardons are criticized but rarely questioned

Perhaps even more than other constitutional provisions, the pardon was built on the hope that presidents would have the good sense not to abuse it. During their debates over the pardon power, the founders actually considered an exception that would stop a treasonous president from absolving co-conspirators who had also committed treason, but they ultimately decided against adopting it. The Constitution does outline a few limits to the pardon power — it only applies to crimes (not lawsuits), it can only be used to forgive federal (rather than state) offenses, and it can’t be used in cases of impeachment — and the courts have, over time, sketched out a few more boundaries.

“There is a check on a president who abuses the pardon power,” Brian Kalt, a law professor at Michigan State University and an expert on pardons, told me. “He gets voted out of office or he is impeached.” Although a president hasn’t yet been impeached for an unpopular pardon, Ford’s popularity did suffer after he pardoned Nixon, and that may have cost him the 1976 election. Presidents George H.W. Bush and Bill Clinton also granted risky pardons — Bush functionally ended the Iran-Contra investigation, in which he was implicated, by pardoning six former Reagan administration officials, and Clinton pardoned his half-brother. But both Bush and Clinton granted these pardons in the waning days of their presidencies, when the political consequences weren’t as severe.

But generally, even though past pardons have been criticized and even investigated, the legitimacy of a president’s pardon hasn’t been questioned in the way that Trump’s pardon of Arpaio is being debated. Trump’s actions and rhetoric have, however, exposed a loophole in the pardon power: Even if a pardon is arguably an abuse of presidential power, there’s currently no clear way to undo the pardon itself. So now the question before the courts is whether Trump’s actions are extreme enough to warrant blowing up the constitutional status quo. Advocates of pardon restrictions say that their arguments really aren’t that radical — they just think pardons shouldn’t override the rest of the constitutional system. What remains to be seen is whether the courts feel the same way — or whether they’ll tell Trump’s critics to take their grievances to Congress.

Other cases

Pre-presidency Trump

Last week was big for special counsel Robert Mueller’s investigation and closely related cases, particularly for three cases we’re tracking: United States v. Manafort, United States v. Cohen, United States v. Flynn.

  • Late Friday, Mueller’s team released a memo arguing that Paul Manafort, Trump’s former campaign chair, told “multiple discernable lies” to investigators in violation of his plea agreement. Much of the memo was redacted, but some of the alleged lies were related to Manafort’s contacts with the Trump administration and with a former Manafort aide who has ties to Russian intelligence.
  • Prosecutors in the Southern District of New York and Mueller’s team also released two separate sentencing memos for Michael Cohen, the president’s former lawyer. In the Southern District of New York’s memo, prosecutors alleged that Trump, while he was a candidate for president, directed Cohen to make illegal payments to two women to keep them from airing details about past affairs.
  • On Tuesday, Mueller’s team filed a sentencing memo in the case of Michael Flynn, Trump’s former national security advisor who last year pleaded guilty to lying to the FBI about his contacts with the Russian ambassador during the presidential transition. According to the memo, Flynn gave “substantial assistance” to Mueller’s probe, but heavy redactions made it impossible to learn much more than that.

President Trump

One of the three cases that challenge Trump’s alleged “emoluments” — that is, illegal gifts from foreign and state governments that critics claim he receives in the form of profits through his businesses — is speeding ahead, at least in legal time. Last week, Judge Peter J. Messitte released a schedule for discovery in the case, District of Columbia v. Trump, which is set to conclude next summer. The plaintiffs have said they’ll subpoena evidence from as many as 13 private entities connected to Trump, including the Trump Organization. But the process could be derailed: Justice Department lawyers and private lawyers representing Trump have vowed to fight the order with an unusual appeal to the 4th Circuit, asking the higher judges to declare Messitte’s discovery order to be illegal or improper.

The Trump Administration

  • In late November, the Trump administration had yet another loss in a sanctuary cities case, State of New York v. United States Department of Justice. A federal judge in New York ruled that the Department of Justice could not withhold grant money for policing from cities that refuse to comply with some federal law enforcement measures.
  • Around Thanksgiving, the Department of Justice asked the Supreme Court to leapfrog several appellate courts in order to hear ongoing cases involving the Trump administration’s ban on transgender people serving in the military. The judges in one of those cases, Jane Doe v. Trump, refused the DOJ’s request to block or limit the case until the Supreme Court has a chance to weigh in. The case is scheduled to begin arguments at the D.C. Circuit Court of Appeals on Monday.

Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.