Former President Donald Trump has promised to pardon his supporters who were indicted, convicted and, in some cases, imprisoned for crimes committed during the Jan. 6 attack on the Capitol.
But according to a new report from the anti-authoritarianism group Protect Democracy, he may not have that power even if he is re-elected to the White House after this year’s elections.
The report, titled Checking the pardon power: constitutional limitations and options to prevent abuse, sets forth a number of circumstances in which a presidential pardon would not be valid because it would not be a legitimate use of the president’s authority to grant reprieves for “offenses against the United States.”
For some time now, Mr. Trump has been promising to release violent Capitol rioters, including those convicted of assaulting police officers as they stormed the U.S. Capitol in a desperate last-ditch effort to prevent certification of Mr. Trump’s defeat in the 2020 election. Joe Biden.
In a post on his Truth Social platform last month, the disgraced former president said one of his “first acts” in office if he wins a second term would be to “free the imprisoned January 6 hostages wrongly.”
He has also regularly called convicted violent criminals – some of whom are in prison for offenses such as seditious conspiracy – “horribly treated” and claims they are political prisoners persecuted for their support of him and his political movement.
A Republican-appointed federal judge, Royce Lamberth, said in January that he was “dismayed to see distortions and outright lies” about the violent riots “seeping into the public consciousness.”
Judge Lamberth, who made the comments while sentencing a defendant on Jan. 6, said he “(could not) remember a time when such baseless justifications for criminal activity had become common” during his 37 years as a federal judge.
Mr. Trump also regularly used pardons during his first term to reward his supporters for their loyalty to him – and in some cases, to reward them for refusing to cooperate with criminal investigations into his conduct.
He pardoned his former chief White House strategist, Steve Bannon, his former national security adviser, Michael Flynn, his former campaign chairman, Paul Manafort, and his longtime associate Roger Stone in the final days of his mandate. All four were convicted of federal crimes but were rewarded by Mr. Trump for their refusal to turn against him.
The possibility that Mr. Trump could return to the White House and resume such uses of the president’s pardon authority has alarmed legal experts and anti-corruption activists, even as many commentators have suggested that there is no limits on the president’s authority in matters of pardon.
But one of the report’s authors, Grant Tudor, a democracy protection policy advocate, says conventional wisdom doesn’t stand up to scrutiny.
During a telephone interview with The independent, Mr. Tudor explained that the courts have shown no qualms about imposing restrictions on the president’s pardon power.
In one notable case, Burdick versus United States, the Supreme Court ruled that then-President Woodrow Wilson could not unilaterally grant a pardon to New York Tribune editor George Burdick to remove the threat of incrimination against Burdick and force him to testify before a grand jury.
The court’s decision stated that Wilson was able to grant the pardon, but at the same time the pardon had to be accepted by the intended recipient to be effective.
Mr. Tudor explained that the court found an “unresolved tension” between the pardon clause and the Fifth Amendment, the latter placing constraints on the president’s ability to pardon offenses.
He also said that the equivalent of the power of pardon in English law – the royal prerogative of pardon – has also been subject to restrictions during its long history, citing the Statute of Northampton of 1328, which stated that the sovereign could not grant mercy when it would. violate his oath. Three centuries later, the Bill of Rights of 1869 suspended the king’s ability to use pardons in a manner that disregarded the Acts of Parliament.
Similarly, Mr. Tudor said a pardon for the Jan. 6 rioters would run into constitutional constraints because it would result in a situation in which “the leader of an insurrection pardons his fellow insurrectionists.”
“We have encountered many situations in which presidents have pardoned those who took up arms against the United States… In all of these cases, the goal was to quell the unrest, not to punish it,” he said. he declared. “It would be the first time that a president, himself accused of a criminal case, pardons, within the framework of this same project, those who contributed to its advancement.”
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