Trump expands the use of pardon power in unprecedented ways

Donald Trumps recent sweeping pardon for associates involved in efforts to influence the 2020 election has pushed the limits of presidential pardon powers in ways not seen before. The pardon is written so broadly and ambiguously that it could potentially include thousands of individuals. The Justice Department now indicates that Attorney General Pam Bondi and Pardon Attorney Ed Martin are tasked with determining the intended recipients and the scope of offenses covered.

This situation has little precedent in modern history, and possibly none at all, for a president to delegate the application of a broadly worded pardon to subordinates. Previous large-scale pardons, such as Andrew Johnsons post-Civil War clemency, Jimmy Carters Vietnam draft dodger pardons, and Joe Bidens marijuana-related pardons, relied on more clearly defined criteria.

Legal experts compare Trumps action to his Inauguration Day pardon for participants in the January 6 Capitol attack, which was also vaguely phrased and led to nationwide legal disputes about its reach. Courts have struggled with how much deference to give to interpretations from the Trump administration after the fact.

Trumps current pardon extends to all United States citizens for conduct relating to the advice, creation, organization, execution, submission, support, voting, activities, participation in, or advocacy for or of any slate or proposed slate of Presidential electors in connection with the 2020 Presidential election. While 77 individuals are specifically named, Trump emphasizes that the pardon is not confined to this list and instructs Bondi and Martin to issue certificates to any qualifying applicants.

Experts say the delegation of this decision-making, combined with the broad wording, effectively leaves the determination of who is pardoned to Trumps aides. Liz Oyer, a former pardon attorney, noted that traditionally the president cannot delegate such authority; the decision must remain the presidents alone.

Discrepancies between Trumps intentions and his aides interpretations, including Martins extensive 15-page analysis issued alongside the pardon, are likely to be settled in court. Saikrishna Prakash, a University of Virginia law professor, pointed out that while George Washington once delegated pardon promises during the Whiskey Rebellion, few efforts since then have clarified the limits of such delegation.

Stanford law professor Bernadette Meyler highlighted the irony of Trump leaving key pardon decisions to the Justice Department after previously questioning the legitimacy of autopen-signed pardons under President Biden. She noted that in this case, Martin rather than Trump would effectively be authorizing a range of pardons. This question is currently being examined in a federal court in Pennsylvania.

Matthew Laiss faces charges for voting in multiple states and claims his case should be dismissed under Trumps pardon. The Justice Department contends that Trump did not intend for the pardon to cover Laiss, asserting that Martins interpretation excludes him. Prosecutors emphasize that courts should defer to the Pardon Attorneys determination, intervening only if it is unreasonable.

The case will initially be decided by U.S. District Judge Joseph Leeson, who has scheduled a hearing to address Laiss pardon claim. Laiss attorneys argue that the pardon language clearly includes his alleged actions and contend that it is unfair for high-profile allies to be pardoned while a young voter faces prosecution.

Author: Grace Ellison