It might not be so simple for Trump to pardon his children and Giuliani
It might not be so simple for Trump to pardon his children and Giuliani
Opinion by Aaron Rappaport
Dec. 3, 2020 at 3:38 p.m. EST
https://www.washingtonpost.com/opinions/2020/12/03/trump-blanket-pardons-children-giuliani-law/
Aaron Rappaport is a law professor at the University of California Hastings College of the Law.
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Most observers assume that the president is free to issue blanket pardons, believing the president’s power in this area is effectively unlimited beyond the few constraints explicitly mentioned in the Constitution (no pardons in cases of impeachment, or for state crimes). My scholarship suggests that interpretation is incorrect.
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The Supreme Court has repeatedly affirmed that the scope of the pardon clause should be interpreted in light of its meaning at the time of the founding. This originalist methodology means looking to 18th-century English law. As the court said in an 1855 case, “when the words to grant pardons were used in the constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word pardon.”
That meaning included what might be called a “specificity requirement” — a pardon would be deemed valid only if it identified the specific offenses to which it applied. As William Blackstone, the leading authority on English law at the time, declared: “A pardon of all felonies will not pardon a conviction.” Instead, the offense “must be particularly mentioned.” Blanket pardons, in other words, were invalid.
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The Supreme Court has never ruled on the specificity requirement, and the question of the validity of any blanket pardon by Trump would come up only if a federal prosecutor seeks to indict a pardon recipient who raises the pardon as a barrier to prosecution.
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