Aaron Rappaport is a law professor at the University of California Hastings College of the Law.
President Trump’s holiday gift list, news reports suggest, may include broad pardons for his three oldest children and his personal lawyer, Rudolph W. Giuliani, even before they have been charged with any crimes. But if Trump believes such pardons would protect the recipients from federal prosecution, he should think again. In addition to violating core democratic ideals, such a move might well prove beyond his constitutional authority.
Pardons come in many varieties, but the vast majority are issued to individual offenders for specific charges or convictions. Blanket pardons for individuals — such as Gerald Ford’s pardon of Richard Nixon for “all offenses against the United States” — are exceptionally rare. Over the past half-century there is only one other example: George H.W. Bush’s pardon of officials caught up in the Iran-contra affair “for all offenses” within the jurisdiction of the independent counsel.
Both of these pardons were heavily criticized at the time, and with good reason. A blanket pardon inevitably hides from public scrutiny what is being immunized, undermining accountability. It offers the opportunity for unscrupulous presidents to protect friends and accomplices from the reach of the law. And it can lead to errors, since the pardon may immunize an offender for crimes beyond the president’s intentions. This is not to say that blanket pardons have no benefits; some believe that Ford’s pardon of Nixon helped the nation move on from Watergate. But the risks of a blanket pardon outweigh the benefits. Continue reading.