Many are outraged by the “pardonpalooza” — to them, an obvious affront to the rule of law. But though it may be reckless, this freewheeling exercise of the pardon power by Trump nevertheless might have unexpected upsides. Paradoxically, it might give a boost to more effective forms of accountability than the criminal justice system — by empowering congressional investigations, in which people pardoned by Trump couldn’t decline to testify. Such investigations then could lead to reforms to prevent future abuses by presidents and their associates.
Even a self-pardon — a stark flouting of the rule of law — could have a thimble-size upside: It would allow federal courts to rule, once and for all, that such pardons, whose legality has been debated for decades in the abstract, are forbidden. Such a ruling would not be a sure thing but seems highly likely, given the strength of the arguments against self-pardons and the Supreme Court’s demonstrable willingness to interpret presidential power in light of the Constitution’s broader commitment to democracy. In the long run, the benefit of a decisive ruling on the question might offset some of the immediate harm.
But first, consider the effects of pardons on congressional investigations. Many House Democrats say they will persevere, even after Inauguration Day, with lawsuits and investigations intended to shine light on the misdeeds of the present commander in chief. Rep. Jamie B. Raskin (D-Md.), for example, has committed to “investigate things that are profoundly damaging to our system of government and are capable of repetition by a future executive or administration.”
Without pardons, investigations such as Raskin’s would be uphill slogs. A major hurdle would be the Fifth Amendment’s privilege against providing testimony or documents that are self-incriminating. That gives the former president, his family and friends a broad chit to refuse to cooperate. The Supreme Court has said, after all, that even an avowedly innocent person can claim a fear of being “ensnared by ambiguous circumstances” to stay silent without legal repercussions.
Congress can get around that obstacle — but the process is fatally clumsy. Each time a witness invokes the Fifth Amendment, the House or Senate can, by majority vote, petition a federal court for an immunity order, which means the witness has to testify but cannot be prosecuted or sanctioned using their answers. Each use of this procedure requires weeks of advance notice to the attorney general, who makes the filing, and then witnesses might contest the order in court. All of these steps quickly gum up congressional inquiries.
But pardoned people are by definition no longer in legal jeopardy for federal offenses, so they can no longer claim any Fifth Amendment privilege in that realm. If they refuse to speak, the legislature can flex its contempt power: At one extreme, this can involve the threat of jail time, but it can also mean daily fines calibrated to the asserted wealth of a reluctant witness. For the Trump family in particular, their zealous defense of the wallet might make them eager to comply.
Concern over Trump’s potential pardons stems, in part, from the misplaced belief that criminal trials are the only instrument of accountability. But the nation absorbed lessons from Watergate despite President Gerald Ford’s blanket pardon of his predecessor, Richard Nixon — in part thanks to investigations in both houses of Congress.
The argument for the silver lining of Trump’s pardons is, of course, strongest when the pardoned person has knowledge of the inside workings of the Trump campaign or administration, and where the elicited testimony won’t affect state criminal trials. It is less relevant when clemency is granted — as it also was this past week — to people convicted of killing civilians in war or for their corrupt activities beyond the White House.
Finding something positive in a Trump self-pardon is harder work. But even this outrageous act might have an upside — if it is challenged and overturned, this tool would be out of the hands of future would-be autocrats.
Trump can flirt with the idea only because the Constitution’s drafters didn’t think to address the possibility that a president would pardon himself. (Article II speaks in general terms of a power to pardon “Offenses against the United States.”) The topic was not directly discussed in either the Philadelphia Convention or the ratification debates. The framers believed that ambiguities in the Constitution would be resolved by amending its text, but amendments require supermajorities in both houses of Congress and the states — clearly out of reach in these days of acute partisan polarization.
So it would be up to the courts to decide whether a self-pardon was legitimate. First, a relevant case would have to arise. Some legal commentators have argued that, even if Trump were to pardon himself, the issue would be moot unless a future administration charged him with a crime — which may never happen. But it could also be tested if Congress called Trump to testify as part of an investigation of his administration, and he declined. He could not simultaneously claim the protection of a pardon and refuse to answer questions on Fifth Amendment grounds. If he did, defying Congress’s contempt powers, he would squarely raise the legal issue of the validity of a self-pardon.
Today’s Supreme Court is unlikely to endorse a self-pardon. A majority of the justices were appointed by Republicans, and three of them by Trump, but self-pardons — like concerns about presidential power more generally — aren’t the preserve of any one side of the aisle. (Some conservatives worried that President Bill Clinton would pardon himself, although Clinton disavowed the idea.)
The justices wouldn’t mechanically determine whether self-pardons are constitutional simply by reading the text (which does admit the possibility). They would decide how the practice fits with the current understanding of presidential power and democratic governance. Recently, the court affirmed a presidential power to remove the heads of federal agencies — even if Congress disapproves — as necessary for democratic control of such agencies (not a power delineated in the text). And this year the court held that Congress had broad powers to investigate the president’s finances and acquire his tax filings, because this contributes to the smooth functioning of democracy.
Self-pardons plainly conflict with the Constitution’s commitments to prevent official self-dealing and concentrated undemocratic power, which is why very few legal observers believe them to be constitutional. For the court to say so, decisively, would be salutary.
When it comes to officials besides the president, the widespread concern about pardons overrates the importance of establishing criminal culpability and underrates the weight of congressional investigations. The pathologies of the Trump years have not been a function of one person’s actions. Legislative inquiries are better suited than criminal trials to airing these pathologies, and pardons won’t block them.
A blaze of pardons might draw attention away from an unproductively narrow instrument of — and way of thinking about — accountability: convictions and jail time. It could nudge Congress and the people toward a richer and fuller exploration of the perils our Constitution has recently faced, and may face again before too long.
This article has been updated.