President Trump, in his zeal to complete a border wall before the next election, has reportedly told his staff to disregard the law—in this specific instance, to take private property without due process—and not worry about the consequences. He has, the New York Times writes, promised to pardon anyone who commits a crime in helping him to fulfill his campaign promise, though his aides have said that this was a “joke.” Once again, the seeming unfettered nature of the president’s pardon power is in the news.

Pardon Power, the Right Way

Though the pardon power has atrophied over time, the Founders’ original conception of it was quite broad and comprehensive. They saw the power as, in effect, coming in two “flavors.” One flavor might be called the “justice and mercy” flavor—it’s the idea that a president acts to correct a perceived injustice in the criminal justice system and right a terrible wrong. As Alexander Hamilton put it in Federalist No. 74: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Or as Chief Justice John Marshall wrote more than 200 years ago: “A pardon is an act of grace, ... which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” One example of this type of pardon was Thomas Jefferson’s pardon of many who were convicted under the Alien and Sedition Acts—a law passed during an undeclared naval war with France, which seemed to outlaw criticism of the Adams administration and was widely viewed as a government overreach into the realm of censorship.

Another example of this idea of justice and mercy was the recent pardon of the boxer Jack Johnson. Johnson, a black man, had a relationship with a white prostitute named Lucille Cameron. In 1912, Johnson was arrested and charged with violating the Mann Act, which prohibited the transportation of a woman across state lines for immoral purposes. He was acquitted. But in 1913, after Johnson had married Cameron, he was arrested again and convicted by an all-white jury for driving with Cameron across state lines under the same statute—a result that in today’s light seems like little more than racism, pure and simple. Politicians, including Sens. John McCain and Harry Reid, as well as celebrities, such as filmmaker Ken Burns and actor Sylvester Stallone, all supported a pardon for Johnson. The injustice was finally righted by Trump in 2018, albeit more than seven decades after Johnson’s death.

The other flavor of pardon might be called the “peacefulness” pardon. This is the idea that a president can, by issuing a pardon, bring about reconciliation between political opponents in a contentious context. Again, to quote Hamilton from the Federalist Papers, “A well timed offer of pardon to ... insurgents or rebels may restore the tranquility of the commonwealth.”

George Washington used the pardon power in this way to quiet the Whiskey Rebellion, a violent response to a whiskey tax that, coincidentally, had been imposed by Hamilton. Later, Andrew Johnson tried to calm the post-Civil War waters by granting pardons to the Confederates who had rebelled against the Union, as well as to Samuel Mudd, the doctor who had treated John Wilkes Booth as he fled after assassinating President Lincoln. Likewise, Jimmy Carter issued a sweeping pardon for all the Vietnam War resisters who had fled to Canada. More controversially, but seemingly with the same intent, President Gerald Ford pardoned Nixon, in the hope of putting Watergate behind the country.

Presuming Presidential Bona Fides

But this broad conception of a pardon power seems to rest on a presumption of regularity. Whether exercised wisely or ill advisedly, the belief was then (and has generally always been) that a president imbued with this power would use it within the confines of general principles of law and process and not for his own good. Indeed, it’s clear that the assumption of propriety undergirded the Framers’ decision to adopt an effectively unlimited pardon power, because they rejected a challenge to the power grounded on that very concern.

This was the fear that animated George Mason at the time of the nation’s founding. It’s one of many reasons he refused to sign the Constitution, thinking that it gave the executive too much power with too little checking.

As Mason said during the debates about the Constitution: “The President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. ... [I]f he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”

Mason’s argument was actually quite broad. He was worried about the idea that the president might pardon his own co-conspirators and criminal confederates—those who committed crimes that “were advised by himself.” One can see how that resonates with today’s news.

But Mason’s concerns were rejected by the majority of the Framers. James Monroe, for example, responded:

There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended fill he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.

And so, Mason lost the argument. As a result, the executive now enjoys a broad pardon power and impeachment is the only response to its abuse.

Can a Pardon Be a Crime?

But is it really the case that the president can, say, commit a crime in granting a pardon and not be held criminally liable for his actions because he then pardons himself? Is it likewise the case that the president can direct subordinates to act criminally, on the promise of a pardon, with no other recourse than that of impeachment?

I think not. As part of a larger series I compiled on “Investigating American Presidents,” I considered some hypotheticals regarding presidential pardon behavior that are, I hope, instructive.

Of course, to be clear, the precise legal question has never been decided. No president has ever promised a pardon in advance of his aides and staff committing criminal acts. And hopefully, despite reports to the contrary, no president will.

But if it were to happen, I suspect that the answer would be that the president’s pardon power does not extend to criminality. In other words, the pardon itself would be valid (and the recipient could use it to clear his or her record), but the president is liable for any crimes he might commit in the lead-up to the pardon. To take an obvious and easy example, if a president solicited a bribe to grant a pardon, the likely result would be that the pardon would be effective but the president could be charged with soliciting a bribe.

To see this side of the argument most clearly, consider the prospect of a promised pardon—that is, one that the president hasn’t given yet.

Imagine, for example, that a president asks his staff to commit a crime and promises a pardon as recompense. To use a hypothetical slightly different from that posited in the news regarding the border wall (but resonating with the recent past), say that a president knows that a particular person is a key witness against him. The witness (let’s name him Minifort) has been indicted and is awaiting trial. The prosecutor is offering Minifort a deal—testify against the president and we’ll drop all the charges.

What happens if, say, the president makes a promise to the witness: “Don’t testify against me and go take your chances at trial. If you get acquitted, great, but if you get convicted, I promise to pardon you and you’ll never spend a day in jail.” If the offer were made by anyone other than the president, or if the promise were anything other than a pardon (say, a money payment), that promise would be a classic attempt to tamper with a witness and obstruct justice. It’s only because it is the president and because it is also a pardon (a seemingly uniquely presidential power) that it may look different.

In fact, at least some observers do look at it differently. In a letter to Special Counsel Robert Mueller, Trump’s lawyers insisted that, as president, Trump could not be prosecuted for obstruction of justice. The lawyers expressly tied the pardon power to a very wide-ranging assertion of a president’s complete authority to do what he wants with a criminal investigation: “[B]y virtue of his position as the chief law enforcement officer … [the president] could, if he wished, terminate the [Russia] inquiry, or even exercise his power to pardon if he so desired.” This statement pretty much amounted to an assertion of the president’s authority to grant wholesale pardons of witnesses, subjects or targets as a means of ending an investigation.

But let’s spin our hypothetical out a bit. What if the president who promised a pardon never delivers? What if Minifort stays mum, is convicted and goes to jail, and the president reneges on his promise to grant a pardon? Or what if, to return to the current news, Department of Homeland Security staff go ahead and begin construction without having legal authority to do so, committing crimes along the way (trespassing on private land, say), and President Trump does not pardon them for their actions, despite having promised to do so. Without the pardon coming to fruition, the cloak of absolute presidential power pretty much dissolves. And it is hard to see how, without the cloak, the false promise of clemency wouldn’t be an obstructive act. But how can the same promise be criminal if the president doesn’t deliver, and totally lawful if he does?

That result seems to me implausible. And, thus, it seems rather more plausible that the promise, in advance, of a pardon to induce someone to commit illegal acts is, itself, an illegal act for which a president may be criminally charged.

Of course, all of this is an unlikely hypothetical. Other barriers to criminality (most notably the Office of Legal Counsel policy against indicting a sitting president) make it wildly implausible that Trump will be called to criminal account for his actions. But that uncertainty should not blind Americans to the reality of what is happening. The promise of a pardon as a means of incentivizing criminal conduct by executive subordinates is so far outside the bounds of historical precedent as to be extraordinary. It borders on, and plausibly crosses the line into, criminality.

Because the prospect of court action is so unlikely, the country is, once again, looking at an area of presidential conduct where the judicial system really has little purchase. In the end, the limits on presidential action, if there are to be any, must come from other forums—either from the court of public opinion or, if necessary, the court of legislative oversight, and review, and impeachment. And so, I’ll end with the obvious question: If a president used the pardon power to excuse all of his co-conspirators who were indicted for their crimes, or to preemptively promise to excuse the criminal acts of executive staff who follow his criminal direction, how should Congress react? How will it?