Donald Trump

Donald Trump’s Pardon Power and the State of Exception

By Quinta Jurecic
Monday, June 11, 2018, 7:30 AM

President Trump has been merciful lately. In April, he pardoned Scooter Libby, the former aide to Vice President Dick Cheney who was convicted of perjury, obstruction of justice, and making false statements in the investigation into the leaking of a CIA agent’s identity. In the  past two weeks, he has granted pardons to deceased boxer Jack Johnson and right-wing political commentator Dinesh D’Souza and commuted the sentence of Alice Marie Johnson—a woman sentenced to life in prison for a nonviolent offense—apparently on the request of Kim Kardashian West.

Trump, however, has another target in mind for his grace. On Twitter last week, he took things a step further:

Trump’s tweet, and the letter from his lawyers to the special counsel’s office that sparked it, touched off a debate among legal commentators as to the constitutionality of a presidential self-pardon—and a wave of alarm over what seemed to be the president’s latest effort to hold himself above the law. “L’etat, c’est moi,” wrote many in response.

But instead of Louis XIV’s declaration of absolute power, there’s another phrase that might be used to characterize Trump’s recent interest in his authority to pardon: “Sovereign is he who decides on the exception.”

That line comes from the prewar German legal theorist Carl Schmitt, who famously argued that sovereign power is defined by the ability to act outside the normal structures of law in an amorphous “state of exception”—a crisis that can be declared as such only by the sovereign. Schmitt’s opportunistic involvement with the Nazi state has long cast a shadow over his work, though he became newly trendy as American legal scholars grappled with the concept of emergency in the wake of the 9/11 attacks. He argues that, however much liberal democracy seeks to constrain power by the rule of law, ultimately the state will come up against the moment of exception, which can’t be regulated or anticipated. In that moment, law gives way to absolute dictatorship.

A month before Trump’s inauguration, I argued in an essay on Lawfare that Trump “poses an interesting problem for the Schmittian revival: have we now ... elected our first Schmittian President?” Trump, I wrote, appeared to have no understanding of the Constitution either as a constraint on his power or as a cultural document foundational to American democracy. He had lashed out at the courts and continues to demand the prosecution of his political rival. He had voiced admiration for dictators unconstrained by the rule of law. He had played—and continues to play—fast and loose with the truth in a fashion that suggests a similar disrespect for law, another structure key to the mutual understanding necessary for democratic life.

But, as I wrote then, Trump’s instincts toward a Schmittian vision of power—in which the rule of law ultimately boils down to the unreviewable sovereign decision—didn’t necessarily translate to a Schmittian style of governance. Dismantling liberal democracy takes focus and effort. And so far, the president has shown no indication of either.

Now consider the Washington Post’s reporting on Trump’s newfound affection for the pardon power:

The presidential pardon holds a special resonance for Trump, representing one area where he has almost unchecked power as other aspects of his presidency — especially special counsel Robert S. Mueller III’s ongoing probe into Russian interference in the 2016 presidential election — remain outside his control, according to his aides and advisers.

Trump entered the White House expecting to have few limits on his power — envisioning the presidency as more like his private business than a plodding bureaucracy. He has grown frustrated over what he views as Republican impotence on Capitol Hill, Mueller’s sprawling investigation and a coterie of aides who are at times riven by infighting.

But on pardons, he has been able to act unchecked, and has recently even floated the idea that he has authority to pardon himself, though suggested he will not do so.

A White House official who, like others, spoke on the condition of anonymity said Trump is “obsessed” with pardons, describing them as the president’s new “favorite thing” to talk about. He may sign a dozen or more in the next two months, this person added.

In his attempts to aggressively wield the power of the presidency, Trump has repeatedly been stymied by the other branches of government. Instead of Andrew Jackson’s (likely apocryphal) challenge to the Supreme Court, “John Marshall has made his decision, now let him enforce it,” Trump president defiantly tweets about his unbridled power and then, when he loses in court, abides by the decisions that check his power. Sometimes he doesn’t need a court order to keep him from acting. Despite his promises to “bring back a hell of a lot worse than waterboarding,” the United States has not yet returned to the use of torture. And instead of firing Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, Trump complains about them on Twitter, apparently in the hope that they’ll resign out of sheer embarrassment.

Likewise, Trump has run up against the bureaucracy and internal checks of the executive branch. “The saddest thing,” he told a talk-radio host in November, “is, because I am the president of the United States, I am not supposed to be involved with the Justice Department ... I’m not supposed to be doing the kind of things I would love to be doing and I am very frustrated by it.”

Trump may succeed over time in chipping away at the Justice Department’s independence. Only a few weeks ago, he crossed the line of giving the department’s leadership an outright order—over Twitter—regarding a criminal investigation into himself and his close associates. Yet if he is succeeding, he is doing so slowly, clumsily and with plenty of whining—not exactly the image of the decisive Schmittian leader.

But then there is the pardon power. As the Post writes, it is “one area where he has almost unchecked power as other aspects of his presidency ... remain outside his control.” Trump’s tweet on self-pardoning might be less a warning sign of his future plans and more a display of delight over finally having discovered an outlet for the unconstrained authority he wants: “I have the absolute right to PARDON myself” (italics mine).

Whether or not the president can pardon himself is, as Jack Goldsmith recently noted, a question to which there is “no obvious right answer.” But Trump is certainly right that the pardon power is as close to “absolute” as Article II allows. It derives historically from the monarchical prerogative: William Blackstone famously argued that “one of the great advantages of monarchy in general” is that “there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment.” And as Alexander Hamilton wrote in Federalist 74, the pardon power embedded in Article II likewise comes down to the moment of individual decision by the president alone:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.

Hamilton and Blackstone both describe the pardon as an act of grace—something opposed to systematized criminal law. The Supreme Court has understood it similarly, writing in Ex parte Garland in 1866, “The power thus conferred is unlimited … Congress can neither limit the effect of [the president’s] pardon, nor exclude from its exercise any class of offenders.” In U.S. v. Wilson, Chief Justice John Marshall wrote, “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws.” And in Ex parte Grossman, Chief Justice William Howard Taft suggested in 1925 that the pardon power could not be limited by the courts but that the only appropriate remedy for its abuse would be impeachment.

This vision of the pardon power has not been universal in the court’s history: In Biddle v. Perovich, Justice Oliver Wendell Holmes cautioned, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme.” But it’s telling that Holmes felt the need to strip away the role of grace to situate the pardon power within “the Constitutional scheme.” The moment of grace in which the president decides to dispense mercy cuts against the structure of a liberal-democratic rule-of-law system, under which decisions are reached through a framework of mutually understood rules and according to principles of equal treatment. Mercy, in the form of the prosecutor’s discretion not to bring a case, can’t be entirely systematized out of a rule-of-law system. As Justice Robert Jackson wrote, “no prosecutor can even investigate all of the cases in which he receives complaints”—but the pardon occupies a different space in that it overrides the judgment of the legal system rather than enabling discretion within it.

In this way, the pardon power is, well, almost Schmittian. A grant of mercy is very different from a state of exception. But in both cases, the sovereign decides who and what should be exempt from the usual fixtures of law. Like the state of exception, the pardon is dispensed by the decision of a sovereign whose judgment cannot be reviewed: The normal rule of law falls away and leaves only the moment of individual decision. And like the state of exception, the pardon power occupies a strange, uncertain space that could be described either as a hole in law or the edge of law. Schmitt’s sovereign is vested by law with the authority to suspend law. Or as the Supreme Court wrote in Ex parte Garland, “The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” That is, the prerogative is both given to the president (“reposed in him”) by the Constitution but is not subject to the usual constitutional constraints—except, of course, by the extraordinary measure of impeachment.

Clemency might be the flip side of the coin from the state of exception. Both exist in tension with the rule of law. But where the exception departs from the restraints of law in order to more effectively wield force, the pardon power grants a reprieve from what legal scholar Robert Cover memorably describes as the “field of pain and death” enabled by law. It is the power to forgive only—which is presumably not quite what Schmitt was talking about.

In this sense, the pardon power poses less of a threat to the rule of law as a whole than does the state of exception: Schmitt describes the state of exception as “the suspension of the entire existing order,” but pardons are usually doled out case by case within the existing order. While nothing technically stops the president from undercutting the criminal justice system by issuing pardons en masse, impeachment does provide a check against that. Similarly, a presidential self-pardon would arguably move past the boundaries of the “existing order,” but that runs the same risks.

Notably, though, Hamilton in Federalist 74 contemplates uses of the pardon power other than simple mercy. He suggests that the pardon may also be used to “restore the tranquility of the commonwealth” by granting clemency to “insurgents or rebels”—an offer on which several presidents have taken him up, including George Washington (who pardoned the ringleaders of the Whiskey Rebellion), Andrew Johnson and Ulysses Grant (who together pardoned almost all Confederate leaders in the years after the Civil War), and Jimmy Carter (who pardoned those who evaded the draft during the Vietnam War). This more utilitarian reading of the pardon power diverges from the vision of the pardon as mercy, but it also connects the use of the pardon more directly with Schmitt’s exception—a situation in which the sovereign must go beyond the law to reestablish order.

The problem for Trump is that he lacks the strength of will to be a truly Schmittian president, even if he has instincts in that direction and even if—and this is an open question—American institutions would tolerate true Schmittianism in a president. So in the pardon power, Trump has found a constitutional toy with which he can exercise his Schmittian instincts without coming up against any real opposition or constitutional friction. He can blow through the procedures of the Justice Department’s Office of the Pardon Attorney without repercussion in a way he simply can’t do in his interactions with the special counsel’s office. Even in other areas in which he has been able to bear down with relatively unrestrained power—such as immigration enforcement—he grapples with more far constraints than he does in the use of the pardon.

But Trump’s pardon-oriented Schmittianism is a weak gruel. A true Schmittian president would pardon Michael Cohen, fire Robert Mueller, and order investigations of Hillary Clinton and James Comey. Trump has hinted at all these things but done none of them. While his recent string of pardons may be, as Newt Gingrich suggested, a “signal” to those caught up in the Mueller investigation that the president is “in an all-out war with Mueller and ... willing to issue pardons,” he has confined himself to the realm of signals.

In other words, Trump is a wannabe Schmittian, a Schmittian when it is easy. He is only too happy to wield “absolute power” but tends to fold when that power turns out to be less than absolute.

Trump’s Schmittianism with respect to the pardon power is a reminder of the vast power of the presidency. It is also a reminder of how futile it can be to use the language of law to argue over fundamental questions such as whether the president can pardon himself. Perhaps there is value in dragging the pardon power back from the brink and enfolding it in the structure of law. But in a profound sense, debating the legality of a self-pardon is irrelevant. Whether or not it would be legal—whether the Constitution prohibits it after all or whether Schmitt was right about the hole at the heart of our legal order—the point is that it would be unacceptable. Schmitt’s point is well taken: If the leader has that “absolute right,” there is very little left of the rule of law as part of the liberal-democratic order.

House Speaker Paul Ryan, of all people, seemed to understand this with uncharacteristic clarity when asked his view on the legality of a presidential self-pardon. “I don’t know the technical answer to that question, but I think obviously the answer is he shouldn’t” pardon himself, Ryan told reporters. “And no one is above the law.”

A self-pardon is the most extreme scenario. But in 1974, in his canonical book “Impeachment: A Handbook,” constitutional scholar Charles Black turned to the pardon power more broadly to explore the possibility of a non-criminal and not-obviously unconstitutional impeachable offense. He proposes a hypothetical: Imagine that the president announces a policy of “systematically pardoning all government police who kill anybody under any circumstances.” (It says something about the current president that, while unlikely, this does not seem entirely out of the question.) This “would not be a crime,” Black writes, “and probably could not be made a crime under the Constitution”—and yet, he argues, it must be grounds for impeachment, because it is so “obviously wrong, in [itself], to any person of honor.”

This is the irony of the pardon power. It is located both at the dead center of presidential authority and at the edge of the law—an attractive plaything for a would-be authoritarian without a dictator’s strength of will. It relies, as Schmitt writes, not on legal constraint but on sovereign decision. And precisely because of this ambiguous relationship with the rule of law, the most compelling response to abuse of the pardon is not an objection framed in legal terms but, rather, a judgment that echoes the Schmittian dictator’s moment of unreviewable decision: an instinct incommensurable with law. Trump’s approach to the pardon power is, as Black writes, “obviously wrong.” There is no more explaining it than that.