June 24, 2024


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Experts Explain Why Trump’s Pardons Can’t Be Voided

WASHINGTON, DC - DECEMBER 12: U.S. President Donald Trump pumps his fist as he departs on the South Lawn of the White House, on December 12, 2020 in Washington, DC. Trump is traveling to the Army versus Navy Football Game at the United States Military Academy in West Point, NY.

President Donald Trump issued a slew of controversial pardons this week, using his executive clemency power to benefit his friends and allies, including a spate of former advisers who either pleaded guilty or were convicted of crimes in former special counsel Robert Mueller’s investigation into Russian election meddling. While many of Trump’s critics denounced this exercise of power, an erroneous theory claiming that Trump’s pardons could be invalidated went viral on social media and caused significant backlash from experts in the legal community.

The fallacy was first introduced by Seth Abramson, an attorney and professor of Communication Arts and Sciences with a large and devoted following on Twitter.

“The Pardon Clause prohibits using the pardon power to obstruct impeachments. Trump repeatedly opined—rightly—that Mueller’s probe could lead to a referral for possible impeachment (which it did). The pardons he just gave are the ones he dangled to obstruct Mueller. See the issue?” he wrote Wednesday night as part of a lengthy Twitter thread.

“Those who say the pardon power is unreviewable aren’t just wrong, they *know* they’re wrong. The Pardon Clause makes explicit that Congress has standing and a cause of action if the power is used to obstruct an impeachment. So the power is definitionally reviewable by the courts.”

It appeared that Abramson’s position was based on a common misconception about the impeachment exception to the president’s pardon power.

The impeachment exception in Article II of the U.S. Constitution has no bearing on the president’s ability to pardon individuals for federal crimes – it only precludes a president from reversing the legislature’s decision to impeach and remove a federal employee from their position in the federal government. Put simply, the impeachment exception allows Congress to fire someone from a job without interference from the president; the pardon power allows the president to erase someone’s criminal status.

“There is only this limitation to [a presidential pardon’s] operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment,” the Supreme Court wrote in the 1866 landmark case Ex parte Garland, which has remained legally binding for over 150 years.

While it is possible for a presidential pardon to be deemed a crime, even that fact would not make the pardon itself void. Instead, it would be punishable via impeachment.

As the theory gained traction across the internet, attorneys and law professors quickly contradicted Abramson’s claims.

“Oh, for fuck’s sake, Seth. Can’t you take like two weeks off from misinforming people about the law?” wrote ommercial litigator Akiva Cohen in a long response thread. “Almost every word of this thread is wrong, starting from its fundamental premise.”

“The Congress doesn’t have to (or get to) go to court and file a suit to have the pardon declared void. It just continues on its merry way, impeaching the now-pardoned official with all the joy it can muster,” he later wrote.

First Amendment attorney Jay Marshall Wolman was similarly aggravated by Abramson’s theory.

“No. No. No. all it means is a president can’t get an official or judge off the hook from a congressional impeachment. That is the sole limitation you absolute turnip,” he wrote.

National security attorney Brad Moss called the idea of Trump’s pardons being voided a mere “Twitter Fantasy.”

“No, Trump is not going to face criminal scrutiny for the Manafort and Stone pardons. Absent definitive evidence of Trump explicitly promising them pardons for their silence (or money), there is no chance of Trump being charged. It’s an abuse of power but not a criminal one,” he wrote.

“My view and the view of most lawyers is that absent proof of a separate crime – such as bribery, witness tampering or extortion – these pardons will not be declared illegal. It’s Twitter fantasy.”

University of Missouri School of Law professor and legal historian Frank Bowman essentially said Abramson was way out of his depth on the matter.

“This is precisely the problem. You are a guy who practiced state crim law (which is terrific, so did I in my youth). But you are not someone who has ever done the work of studying the pardon clause, its origins & how it relates to rest of constitution,” he wrote.

“You’ve built a large Twitter following, which is to your credit. But you misuse influence you’ve acquired when you simply bellow unsubstantiated theories into the ether as if they were true, and disparage the intellectual honesty of those who question your claims.”

Abramson responded to the criticism by saying the Trump cases were “novel” and “requir[ed] novel thinking.” He also said he was clearing up “gross misstatements” from others about the pardon power.

[Photo by Al Drago/Getty Images]

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