On Pardons, Congress Shouldn't Take a Joke

This piece originally appeared on The Hill.

Once again, the prospect of a misguided presidential pardon is in the news; this time President Trump reportedly offered to pardon aides who break the law to hasten progress on border wall construction.  

The pardon power is expansive, and presidents have used it legitimately in a wide variety of circumstances over the centuries. But the power is not a blank check for a president to circumvent the rule of law. Unfortunately, past presidents have crossed this line before, and Trump’s reported comments are just his latest that raise the question of whether he will join this dubious company. Congress must step in to ensure that the executive branch is faithfully executing laws, and it must stand ready to investigate any abuses of the pardon power.

Following an April CNN report that Trump had told then-Customs and Border Protection Commissioner Kevin McAleenan that he would pardon him if McAleenan violated a court order by denying entry to asylum-seekers, the Project On Government Oversight wrote that the comment “sends a signal that such illegal activities have the President’s blessing, and that those who carry out their work in violation of the law can do so with impunity.” 

That is no less true in this situation. Even though a White House official dismissed the president’s latest pardon comment as a joke and Trump deemed it “fake news,” making light of ignoring legal limits creates an expectation that the rule of law doesn’t matter.

It’s important to remember the purpose of the pardon power in the constitutional scheme. It serves as a check against unjustly harsh court sentences. Alexander Hamilton described it as a means to convey “the mercy of government.”

While the courts, like the other two branches of government, are fallible, the enforcement of duly enacted laws limiting executive power is not an abuse of power, and subverting the law for the sake of political expediency is not mercy.

Indeed, many scholars and advocates argue that the pardon power needs to be understood in the context of the rest of the Constitution, which imposes on the president the responsibility to “take care that the laws be faithfully executed.” Offering pardons as an incentive to break laws is at odds with that duty.

While the Supreme Court has never identified the precise boundary around the extent of the power, it has said in the past that other parts of the Constitution could limit the scope of the pardon.

Presidents have failed before in their duty to wield the pardon power responsibly. For instance, George H. W. Bush short-circuited the Iran-Contra investigation with his Christmas Eve pardons of key players in the affair, and Bill Clinton pardoned his brother and a major donor shortly before leaving office.

When presidents have issued questionable pardons, Congress has often stepped up to investigate. Should any of Trump’s “jokes” turn into action, Congress must do so again here. Even short of that troubling scenario, Congress can and should ensure that ongoing work on the border wall is taking place in compliance with existing laws. Elected officials cannot take the rule of law lightly, or for granted.