Trump's Pardon of Manafort Is the Realization of the Founders' Fears
George Mason anticipated the president’s act more than 230 years ago.
Nostradamus had nothing on George Mason. The French seer earned a reputation for prophecy that was grounded, for the most part, in vague and ambiguous predictions of future events whose malleability allowed supporters to claim he was prescient. As with the Delphic oracle who came before him, Nostradamus’s reputation for foresight was unearned.
George Mason, however, deserves his reputation for the precision of his predictions. Many have proved uncanny, and, at least in one case, his anticipation of the future is almost eerie. Remarkably, Mason predicted Donald Trump’s pardon of Paul Manafort and Roger Stone more than 230 years ago.
[Eric R. Muller: The one word that bars Trump from pardoning himself]
Back in 1787, when the Constitutional Convention was drafting the part of the Constitution that would soon become the presidential pardon power, Mason unequivocally opposed the provision. The president, he said, “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?”
Just so. Obviously, Mason never met Trump. But clearly he had someone like Trump in mind. Trump’s pardon of Manafort and Stone, especially when added to his pardons of Michael Flynn, is of exactly the sort Mason feared—in which an apparent connection exists between the president’s personal acts and those of the people whose crimes he has excused. Manafort, Stone, and Flynn, in different ways, were connected to Trump and allegations of criminality. Their pardons may, in part, be rewards for their refusal to help in holding Trump to account—at least that is how it appears to many observers.
The Manafort and Stone pardons are part of a postelection pardon spree. Recent news reports suggest that Trump is also considering broad preemptive pardons for Rudy Giuliani, and three of his adult children—Don Jr., Ivanka, and Eric. And, most notably, public speculation swirls around the possibility that Trump might pardon himself before he leaves office, or, alternatively, resign a day early so that Vice President Mike Pence can assume the presidency and issue him a pardon.
The pardons (even if issued as part of a deal with the vice president) reflect a confluence of interests between the president personally and those he might pardon. Trump’s possible pardons may be tied to his fear that New York will initiate prosecutions of him after he leaves office. By issuing federal pardons now, he hopes that he can render any future federal or state prosecutions more difficult. The pardons are, in that way, an effort to avoid accountability, or, as Mason put it, to “stop inquiry and prevent detection.”
But even extremely troubling pardons are not necessarily unlawful. As adopted by the Founders, the presidential pardon power is subject to only two clear limits—it cannot be used to excuse cases of impeachment and it covers only “offences against the United States,” which is to say only federal crimes (so potential criminal liability for all pardon recipients in, say, a New York state prosecution remains). Some scholars additionally argue that a self-pardon is implicitly also prohibited—the text says that the president may “grant” pardons, and “granting” oneself a benefit of some sort is a strained linguistic construction.
But that’s about it. Everything else about these pardons, including the incentive they give the president’s allies to withhold evidence of criminality, is, unfortunately, within the anticipated scope of the pardon power. Indeed, the Constitutional Convention, having heard and rejected Mason’s prediction, can reasonably be said to have accepted the possibility of pardon abuse as the collateral cost of having a pardon power in the first place.
[Mark Osler: The Flynn pardon is a despicable use of an awesome power]
And why exactly would the delegates have done that? Why did they disregard Mason’s prediction? In the end, his concerns were rejected by his fellow convention delegates because, in their judgment, there were adequate remedies for that type of presidential misbehavior. As James Madison put it: “There is one security in this case [of misused pardons] to which the gentlemen [i.e., Mason and his supporters] 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 [with a pardon], the House of Representatives can impeach him; they can remove him if found guilty.”
And there you have it. George Mason was prescient. James Madison—tragically, it turns out—was naive. The most insidious damage to American norms from Trump’s pardon extravaganza stems not from the extravaganza itself, though that is bad enough. Rather the damage to our democracy comes, most clearly, from the supine, almost sycophantic nature of Congress’s response to the Trump presidency since the start, both with regard to his abuse of the pardon power and his excesses more generally. Madison saw Congress as a powerful guard dog capable of preventing executive misconduct. Instead, in terms of pardon abuse, as with so many other instances of Trump’s overreach, it has proved little more than a lapdog.