Washington Post Opinion by University of California Law Professor Aaron Rappaport:
‘President trump’s holiday gift list, news reports suggest, may include broad pardons for his three oldest children and his personal lawyer, Rudolph W. Giuliani, even before they have been charged with any crimes. But if trump believes such pardons would protect the recipients from federal prosecution, he should think again. In addition to violating core democratic ideals, such a move might well prove beyond his constitutional authority….’
— Via Washington Post
Some of the problems with blanket pardons include the undermining of accountability that comes with hiding from public scrutiny the facts of what is being immunized; and the errors that might arise from protecting the offender from crimes beyond the president’s intentions. These concerns, of course, will not bother trump but they might not stand up to a court challenge, Rappoport believes.
And a conservative Supreme Court, dominated by self-identified ‘originalist’ jurists who lean toward interpreting the law in terms of what the Framers intended, might construe pardon power as more strongly having a “specificity requirement” as to what is being pardoned. If any Federal prosecutor seeks to indict a person raising the pardon as a barrier to prosecution, this issue may be put to the test for the first time.
Will a Biden Justice Dept be leery of pursuing such a course for fear of the appearance of divisiveness and vindictiveness? Or from looking no better than trump, who led his supporters in “Lock her up” chants during his campaign against Clinton? A nuanced decision lies ahead. Almost surely, discussions of the issue have begun behind the closed doors of the transition process. Arguably, the realpolitik of governing our hopelessly schismatic electorate will dominate over rhetoric about healing rifts and being a President for all, which will probably rapidly prove to have been unrealistic and pie-in-the-sky.