Why Donald Trump should not be allowed to pardon Michael Cohen, his friends, or family members

Today's blog originally appeared in Counterpunch.


Donald Trump is perfectly within his constitutional authority to pardon his attorney Michael Cohen,
even before he is accused or convicted or a crime, as the president recently mused. Trump was also within his authority when he pardoned Scooter Libby, as well as ex-sheriff Joe Arpaio.  And Trump might be within his authority to pardon his children and many others in his administration, and there is little anyone can do about it.  And that is the problem.  The concept of unlimited discretion of the president to issue pardons and reprieves is clearly inconsistent with the concept of limited government and checks and balances and the courts need to rethink the constitutional doctrine that allows for such unchecked authority.

 The historical roots of presidential pardoning power are sourced in British monarchical power.  At one time British kings and queens had unlimited political power, subject to no checks and balances.  “Rex non potest peccare”–“The king could do no wrong”–was the legal theory that gave monarchs not just unimpeachable political power to command, but also the capacity to forgive and pardon.  To paraphrase The Merchant of Venice, the quality of mercy could be strained, as determined by the king.

 Yet the idea of unchecked monarchical power in England ended if not with the Magna Charta in 1215, it did so with the adoption of the English Bill of Rights in 1689 and the Glorious Revolution in 1688-89.  Kingly power was subject to limits and, as British philosopher John Locke would argue in his Two Treatises on Government, legitimate governments and authority are subject to limits defined by the rights and consent of the people.  No government official, including a king, should be given unlimited and unchecked authority.

 Locke is considered America’s philosopher; he heavily influenced the Founding Fathers, including Thomas Jefferson.  In writing the Declaration of Independence, the famous second paragraph that begins with “We hold these truths to be self-evident” is homage to Locke.  So to is the opening words of the Constitution–“We the people”–and even the Bill of Rights.  All of these documents speak to the idea of a government of limited powers and authority, that no one person is above the law, and that the very idea of American constitutionalism is one where there are no inherent and unlimited powers vested in anyone person, office, or body.  The constitutional framers fear of kings and unbridled abuse of power and discretion is the reason for separation of powers and checks and balances.

 However some kingly like powers seemed to work their way into the Constitution. Article II, Section  2 grants that “The President . . . shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  During the Constitutional Convention and debates surrounding its ratification critics feared that the power would be abused and that it needed to be checked, including perhaps by the Senate.  These calls were rejected, and as Alexander Hamilton argued in Federalist number 74: The “prerogative of pardoning should be as little as possible fettered or embarrassed.” But it is not clear that all the Framers intended the pardoning power to be unchecked at all.  The debates at the Constitutional convention demonstrated many concerned with granting presidents unlimited power, others seeming to assume that presidents would excise appropriate discretion in its use.  Unfortunately the courts have not agreed to such checks.

 In Ex parte Garland (71 U.S. 333, 1867) the Supreme Court said of the pardoning power that the
 "power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions." The pardoning power scope is so broad that it even allowed President Gerald Ford to pardon Richard Nixon before he had been indicted for any crimes.

 President Ford’s pardon of Richard Nixon was controversial, and some say it was the reason why Gerald Ford eventually lost a very close presidential race to Jimmy Carter in 1976. Since this pardon, other presidents have used their powers to pardon for political reasons. In 1981 President Ronald Reagan pardoned two FBI agents convicted for authorizing illegal searches of property of antiwar protestors in 1973. In 1992 President George Bush pardoned former defense secretary Caspar Weinberger and other individuals associated with the Iran-Contra Affair during the Reagan administration, and in 2001 President Bill Clinton pardoned Patty Hearst, a kidnaped heiress turned member of the Symbionese Liberation Army, and Marc Rich, who had been indicted on charges of making illegal oil deals and tax evasion. The latter pardon was considered controversial because Rich’s wife was a significant political donor to Clinton campaigns. George W. Bush issued very few pardons and Barack Obama issued 212 complete pardons and another 1,715 commutations of sentences.  While all these pardons met constitutional muster, no  doubt some could be considered abuses of presidential power.

 Presidents do have a constitutional power to pardon and mercy is something they should be allowed to show, using the pardon as a way to correct injustices.  Yet pardons should not be beyond  constitutional limits and review.  Already there are some limits to the pardoning power.  Trump cannot use it to escape impeachment, or to protect himself from any civil law suits such as for sexual harassment.  Nor can he issue pardons for violations of state criminal laws.  Moreover, presidents who abuse their pardoning power might not get reelected–as in the case of Gerald Ford–or be subject to impeachment as Harvard law professor Noah Feldman contends.  But these checks are insufficient, and if the dicta in Garland is taken seriously then nothing would prevent presidents from pardoning themselves, relatives, political allies, and friends.  A constitutional morality that takes rights seriously and also believes that no one should   profit from their own wrong or stand beyond accountability should not allow for unchecked presidential pardoning power.  Presidents are not kings, they do and should not have inherent and unlimited authority to do anything, including pardon.

 The Supreme Court got it wrong in Garland and it is time for the Supreme Court to overturn that precedent.  That decision and dicta are a relic from a different era and legal system.  If the American Revolution and Constitution stand for anything it is that no one is above the law.  Granting presidents unchecked pardoning power, especially in how Trump might use it with Cohen, is inconsistent with separation of powers and checks and balances in that it undermines the ability of the judiciary to act and hold people responsible for contempt.  Unlike kings at one time, we do not presume that presidents can do no wrong and instead the logic of the Constitution is premised on the notion that–as James Madison said in Federalist number 51, that “Men are not angels"–and that there should be limits on all uses of power. Over time the Supreme Court has issued numerous decisions limiting presidential powers, and the same needs to occur with the pardoning power.

Trump, Cohen, and the Limits of Privilege

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.
Executive privilege is what Donald Trump as president may try to invoke if he seeks to squash subpoenas issued by the special prosecutor in the criminal investigation into Russian collusion or other alleged illegal activities.  Executive privilege is grounded in the concept of separation of powers–found especially in Article II, section 2 of the Constitution.  The concept of executive recognizes that some conversations of the executive (which includes the president) are insulated from scrutiny by other branches.  There may be times when the president needs confidentiality to have candid high-level conversations, tossing about ideas or policy options, for example.  Yet this privilege is not absolute, as the Supreme Court said in U.S. v. Nixon, 418 U.S. 683 (1974).
In Nixon at issue was whether president had to comply with subpoenas from a special prosecutor seeking tapes of White House conversations that could possibly be evidence in a criminal matter.  Nixon asserted that executive privilege is absolute, the Court rejected that claim.    It declared: “[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” (418 U.S. 706)  More specifically, when weighing executive privilege against the needs of the fair administration of justice, the Court declared:

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” (418 U.S. 713)

Any generalized assertions that Trump or the White House may make on claims of executive privilege to impede a criminal investigation would be rejected under Nixon.  Whether such action would then rise to the level of obstruction of justice is a different question.  But at the least Trump would lose here.
Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States, 449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.
Generally, attorney/client privilege is absolute–no showing or hardship can overcome it.  The government cannot say that “We know you said incriminating things to your lawyer and we want to know what it was you said.”  The very purpose of the privilege is to protect individuals seeking legal advice from having their conversations exposed.  Yet there are limits to this apparent absoluteness of attorney-client privilege.  First, in In re Grand Jury Subpoena Duces Tecum 112 F. 3d 910 (8th Cir. 1997), then president Clinton sought to invoke both executive and attorney/client privilege to prevent a special prosecutor from securing notes and documents regarding White House conversations with counsel.  These conversations related to the special prosecutor’s investigation of the Clintons’ dealings with Whitewater Development Corporation when he was governor of Arkansas.  Eventually because of Nixon, Clinton dropped  the executive privilege claim, but the Court ruled against him on the attorney/client claim.  It did so by arguing that the use of this privilege  by the White House undermined values such as transparency and the promotion of justice that the government should pursue.  Thus, attorney-client privilege will not protect the president acting in his White House or presidential capacity.
But there is another exception to attorney/client privilege applicable to Trump as a private person and to his attorney Michael Cohen.  It is the crime-fraud exception.   The crime-fraud rule is premised on the notion that lawyers should not be using their legal skills to commit crimes or help their clients break the law.  Such action would be aiding and abetting, for example.  If clients are suspected of using their lawyers to break the law (or attorneys are themselves suspected of the same), attorney-client privileged may be cracked.  How so?
In United States v. Zolin, 491 U.S.  554, 572 (1989) the Supreme Court articulated a test outlining when and how attorney/client privilege may be crack.  That test is best described in United States v Chen, 99 F.3d 1495 (9th Cir. 1996).

First the government must satisfy the judge that there is “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,” and then if the judge decides this question in favor of the government, the otherwise privileged material may be submitted for in camera examination.(99 F. 3d at 1503).

Under the Zolin-Chen test, a judge must be persuaded that a preliminary showing has been made to think that examination of attorney/client conversations will indicate a crime has been committed.  In the case of the Michael Cohen, a prosecutor probably made that showing to a judge, resulting in the issuance of a search warrant to secure his records, including those with Trump.  The next step is a separate hearing for a judge to examine the materials to decide if the crime-fraud exception applies.  This is probably the hearing that is going to happen and which the media seemed perplexed about.  If then the judge is convinced that the exception applies, then it may be used against Cohen or Trump.
Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.
Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

The Tragedy and Farce that is Tim Pawlenty

Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.
—Karl Marx, The Eighteenth Brumaire of Louis Bonaparte.

But when the same person reappears twice, neither Hegel nor Marx saw that he would represent both tragedy and farce at the same time.  So it will be with the candidacy of Tim Pawlenty running for a third term as governor of Minnesota. 
Pawlenty’s candidacy is both a tragedy and a farce, but it is also a long shot where the prospects for success are low.  But his candidacy speaks to many failures in state and national politics, especially with Republicans who are torn between  embracing Trump versus repelled by him.
Consider first the tragedy–Pawlenty’s governorship was largely a failure unless one defines a single-minded cut taxes über alles to be the hallmark of success.  His candidacy was launched in 2002 in the waning days of the Ventura administration when the state and national economy were collapsing after 9/11 and the busting of the dot.com era.  As it was clear that the state was going into the red Ventura proposed tax increases and budget cuts to balance the budget, yet Pawlenty and roger Moe-as respective leaders of the Senate and House, nixed that idea, choosing to kick the fiscal problems down the road past the election. These fiscal gimmicks defined the Pawlenty administration and they included illegal use of unallotments, stealing from the tobacco settlement, trying to force contractors to pay for construction projects up front, and calling taxes user fees.  One also saw a failure to raise state matching funds to qualify for federal transportation matching funding, and borrowing from schools and other funds.  When Pawlenty left office, he strapped the state with an illusionary balanced budget for the current biennium and a projected $6 billion deficit for Dayton.  So much for fiscal conservatism.
Tragedy–in terms of a  fallen bridge–is a lasting image of his governorship, and was also how Pawlenty got elected twice and which defined his governorship.  In 2002 he was in second place behind Tim Penny in the race for governor when Paul Wellstone’s plane crashed and he died.  That event, plus then the Wellstone memorial service, transformed state politics resulting in Pawlenty winning the governorship with 44.4%.  Four years later, with only days before the election he was behind Mike Hatch, only to see the latter make several statements that cost him the election.  In addition, when one examines the election returns, it was the strong turnout for Michele Bachmann in the Sixth Congressional District that pushed Pawlenty across the finish line with 46.7% of the vote.  Pawlenty never won a majority of the popular vote, and were it not for tragedies or missteps by others–or the help of others–he would not have been governor.  Couple these events with his miserable run for president and one can really ask how good or formidable a candidate he was.
Given the tragedy of his governorship, it is a farce for him to run again.  Watching his video declaring one wonders what is his narrative or rationale for running?  In addition, Pawlenty is a person trapped by history.  He both wants to embrace and reject Trump, he wants to appeal to a party that once supported him but which no long exists.   He needs a GOP base to win but he is alienated from it while at the same time embracing it will alienate him from the s wing voters he needs to win.  Moreover, Pawlenty has historical baggage which will define him among voters who remember him, but he was governor so long ago he lacks the name recognition that many think is his real strength.  Pawlenty will be attacked and defined by both Jeff Johnson and other Republicans as out of step and as a failed governor, damaging him if in fact he does manage to go to a primary and win (which I am not sure he will).  At the same time the eventual DFL gubernatorial candidate will benefit from these attacks, making it hard for Pawlenty to win come November.