Opinion | The Supreme Court Could Make the President a King

Any day now, the Supreme Court could issue its decision in former President Donald Trump’s case seeking immunity from criminal prosecution. While the most direct impact of the decision will be on how free presidents may feel to skirt or break criminal laws, the decision could also indirectly affect one of the other powers granted to U.S. presidents: the pardon power.

The pardon power is an odd monarchical feature tucked into the Constitution. For the framers, it was mostly a carryover relic — a bonus, almost subsidiary power they decided might be useful from time to time to foster social unity. They didn’t bother to put many limits on it, partly because they thought it would only be used thoughtfully and sparingly.

But the Supreme Court now appears poised to use the fact that there are few constraints on a president’s pardon power as a model for expanding the powers of the presidency by granting presidents unprecedented immunity from criminal prosecution.

What’s more, the Biden administration has appeared unaware of the danger.

Over and over during the Supreme Court’s oral deliberations in the case this spring, the justices brought up the power given to presidents to pardon people convicted of federal crimes. And repeatedly, a contingent of the court, as well as the lawyer for Special Counsel Jack Smith, seemed to agree without debate that under the Constitution, the president’s power, unlike virtually any other provision of the Constitution, cannot be reasonably construed as limited or constrained in any way, for any reason — even if used corruptly or to facilitate the commission of a crime.

This flawed assumption could come back to haunt the nation. The wide acceptance of the idea that the president’s pardon power has no external boundaries is not being seen as specific to the pardon power but could be used to lay the groundwork for a future president to operate in ways that until now would have seemed to be outside all norms of presidential behavior. For instance, the justices appeared open to the idea that a future president could offer pardons in exchange for personal loyalty on the first day in office — and then on the last day carry through by pardoning himself and anyone involved in crimes committed at his behest.

This means the immunity decision could set the stage for an Oval Office crime spree the likes of which we’ve never seen before. Until the Supreme Court agreed to hear Trump’s bid for criminal immunity, American presidents just assumed that committing crimes in office would come at a price. Yet judging by their questioning, a handful of justices seem eager to use the pardon power and their assumption that the power is absolute as a kind of excuse for expanding the presidential prerogative to include criminal activity.

That would be worrisome enough on its own, but many Democrats and liberals seem oblivious to this danger. By acquiescing too quickly to the myth that pardons are limitless, the lawyer representing Smith — and the Biden Administration more generally — seemed complacent about bootstrapping the pardon power into king-like superpowers.

All this while Trump has already made clear that he plans to pervert the pardon power again if he wins in November.

There’s no evidence that the framers envisioned the pardon power as a foundational guide for defining — and expanding — the powers of a presidency, or as a green light for presidents to commit crimes and get away with it. Instead, it seemed more like an incidental power retained for its potential importance in effectively leading the nation, deriving from a common practice back home in England.

The problem with the absolutist conception of the pardon power is that it collides with the core idea of American democracy itself, which is structured around the idea that the people are the ultimate boss. This bottom-up framework assumes that political figures and federal judges serve at the pleasure of the people, who can fire them at the ballot box or through related levers of accountability. Foundationally, no one is above the law, and no person can be the judge in their own case.

The United States represents a repudiation of the monarchy of King George III, which historically fastened sovereignty on a belief that kings were divinely ordained by God. Not only was the monarch above the law — he was the law. A pardon was a reflection of the king’s unilateral mercy at a time when few formalized rules of criminal justice existed to protect the individual. It also enabled leaders to exercise amnesty for the good of the state — by pardoning rebels or military deserters, for example.

The pardon power made its way into Article II of the U.S. Constitution in 1788 with limited discussion at the state ratifying conventions. The text contains only one express exception: Presidents cannot pardon impeachments. (The British Parliament imposed the same constraint on the king in 1700.) At the Constitutional Convention, additional limits — such as a ban on pardons for treason, Senate approval of pardons and a requirement that convictions precede pardons — were all considered and rejected.

Although anti-Federalists expressed alarm over the possibility of presidential abuse, the delegates seemed more concerned about an overly powerful Congress. Alexander Hamilton wrote in Federalist No. 74 that affording the president an undivided pardon power by “sole fiat” would “naturally inspire scrupulousness and caution,” as “one man appears to be a more eligible dispenser of the mercy of the government, than a body of man.” The “principal argument” for the power, however, was amnesty: If an insurrection or rebellion occurred in the U.S., Hamilton added, “a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”

The Supreme Court has since acknowledged some restraints on the pardon power, which largely go unrecognized in how it is characterized these days. Presidents cannot pardon crimes that haven’t yet been committed, for example, and if a defendant paid a penalty into the U.S. Treasury as part of a sentence, presidents cannot use a pardon to reimburse them — that would violate Congress’s authority under the Constitution’s Appropriation Clause. Like most parts of the Constitution, the pardon power is rationally subject to external constraints imposed by competing constitutional provisions. A president who pardoned all white federal felons in the United States but excluded people of color would violate the Constitution’s guarantee of equal protection.

All this means that the justices and the government probably went too far in their exchanges around how the pardon power might shape the scope of hypothetical criminal immunity. Among the conservative justices, there seemed to be a modicum of agreement that the existence of the pardon power shores up the case that presidents, like unlimited monarchs, enjoy significant immunity from prosecution for crimes cloaked in White House formalities.

Smith’s lawyer did not push back on this sweeping syllogism.

Sometime in the next month, a Supreme Court majority appears poised to rule that presidents can commit crimes with impunity — but only for official acts. For private criminal acts, they can still be prosecuted.

But this line between official and private for now is illusory. When the justices explored that distinction during oral argument and asked about categories of powers that might clearly be immune from prosecution if used to commit crimes, one that came up repeatedly was the pardon power.

When Justice Neil Gorsuch asked the counsel for the government what “core” powers would be indisputably untouchable by the criminal laws, for example, he responded: “The core kinds of activities that the court has acknowledged [is] a pretty small set, but things like the pardon power …” Justice Elena Kagan likewise asked about core executive functions shielded from criminal liability: “Pardon. Veto?” Counsel responded: “Well, with respect to the core powers, we think those are just things that can’t be regulated at all, like the pardon power and veto.” The pardon power, they all apparently assumed, is absolute.

Gorsuch and Justice Samuel Alito went further, suggesting that the pardon power is so broad that immunity from criminal prosecution is necessary to rein it in. Unless afforded criminal immunity, presidents will just pardon themselves and all of their cronies upon leaving office. To avoid having to go through this, they suggested, presidents need what amounts to a pre-pardon from the Supreme Court. Gorsuch said:

“What would happen if presidents were under fear — fear that their successors would criminally prosecute them for their acts in office … It seems to me like one of the incentives that might be created is for presidents to try to pardon themselves … And perhaps, if he feels he has to, he’ll pardon himself … every four years from now on.”

Alito agreed: “If a president has the authority to pardon himself before leaving office and … there is no immunity from prosecution, won’t the predictable result be that presidents on the last couple of days of office are going to pardon themselves from anything that they might have been conceivably charged with committing?”

Perhaps most remarkably, the government’s lawyer barely blinked an eye when confronted with the prospect of a president committing a crime and pardoning himself. Alito followed up: “On the question of whether a president has the authority to pardon himself … what’s the answer to that question?” Counsel for Smith waffled: “The only authority that I’m aware of is a member of the Office of Legal Counsel wrote on a memorandum that there is no self-pardon authority. As far as I know the Department has not addressed it further. And of course this Court had not addressed it either.”

Justice Amy Coney Barrett then asked whether a pardon could be a crime if the president intentionally used it to obstruct justice. As recently as five years ago, the answer was an obvious yes; During his Senate confirmation hearings for the job of Trump’s attorney general, Bill Barr testified that “it would be a crime” for a president to issue a pardon in exchange for a promise not to incriminate him. But during oral argument, the government responded to Barrett with another hedge: “If the Department of Justice ever returned an indictment that said the issuance of this pardon or this series of pardons constituted obstruction of justice, ... a motion could be made on the face of the indictment that says Article II precludes Congress from regulating these activities; the indictment needs to be dismissed.”

Take that in: Counsel for Smith appeared to concede that a president could instruct an aide to obstruct justice and then pardon him or her and it would be constitutional because any such actions are beyond the scope of the federal criminal laws. Is that really what the framers intended?

These admissions around the pardon power are significant because Trump, like the justices, has the pardon power on his mind. When asked by a Time Magazine reporter whether he would consider pardoning every one of the Jan. 6 insurrectionists, hundreds of whom have been convicted of federal crimes and are now in jail, he said, “Yes, absolutely.” Last year, Trump stated publicly that he discussed pardoning himself with his lawyers while still president.

Madison envisaged the pardon power as one that a president would use rarely and with caution, not routinely to protect cronies. But in his first term, Trump pulled the pardon lever for the likes of Steve Bannon (convicted of defrauding donors to Trump’s build-the-wall campaign), Mike Flynn (an avowed QAnon conspiracy theorist who pleaded guilty to lying to federal investigators), Paul Manafort (pleaded guilty to conspiring against the United States), and Roger Stone (convicted of obstructing the investigation into Russian interference to help Trump’s 2016 campaign). Many others within Trump’s orbit entertained the prospect of evading crimes that may have been committed for his benefit with pardons. After Jan. 6, according to former Chief of Staff Mark Meadows’s aide, Cassidy Hutchinson, multiple members of Congress asked Trump for pardons — including Mo Brooks, Matt Gaetz, Andy Biggs, Louie Gohmert, Scott Perry and Marjorie Taylor Greene. Jim Jordan, she said, inquired about the prospect of pardons, too. Rudy Giuliani is accused in a lawsuit of trying to sell pardons for $2 million apiece while tied to Trump, and reportedly sought a pardon for himself.

If all those abuses of the pardon power took place under the old rules, just imagine what could happen in a second Trump administration. The stage is now set for a flurry of crimes committed openly and even seditiously with the expectation that they can and will be shielded by the pardon power — and probably some measure of criminal immunity.

If that happens, the country will have the Supreme Court to thank.