Fordham Law Professor Ethan Leib and Boston University School of Law Professor Jed Shugerman published an op-ed in The Boston Globe arguing that now is the time for the Department of Justice to defend its independence from self-serving presidential interference.
Back when President Trump threatened to pardon himself, we argued that such a pardon would be invalid. Now that President Biden has signed a pardon for his son Hunter, we think such a self-interested pardon is also an unconstitutional abuse of presidential power.
This moment offers a surprising (if narrow) opportunity for the Department of Justice and its prosecutors to defend their independence and seek an important precedent limiting presidential abuse of powers. On Tuesday, District Judge Mark Scarsi, who presided over Hunter’s tax evasion case, signed an unprecedented order recognizing some legal and constitutional limits to the president’s pardon power. But the Constitution contains an even more foundational limit disabling presidents from using pardons in a self-dealing manner.
Although some law professors argue that the pardon power in the Constitution is absolute, our research suggests that the Constitution contains intrinsic limits on this executive prerogative. Lawyers and historians have overlooked the legal significance of a seemingly symbolic phrase used twice in the Constitution: “faithful execution.”
We conclude that self-pardons and self-dealing pardons are constitutionally invalid as violations of the presidential oath (“I do solemnly swear [or affirm]that I will faithfully execute the Office of President of the United States”) and the presidential duty to “take Care that the Laws be faithfully executed.”