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.”
https://twitter.com/SethAbramson/status/1341999409610059776?s=20
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.
Frank’s thread repeatedly misreads mine as a statement on pardon precedent—and a promise of a certain result. I repeatedly say this is a novel case requiring novel thinking, not blithe received wisdom.
You can disagree without misstating what I said or saying I’ve made promises.
— Seth Abramson (@SethAbramson) December 24, 2020
There are two or three pardon experts on Twitter, and scores of attorneys without that experience whose analyses you are not contesting because they concur with what you believe the final result should be, even as they make gross misstatements like “the pardon power is absolute.”
— Seth Abramson (@SethAbramson) December 24, 2020
My thread correctly cleared up a number of misstatements about the pardon power, offered potential lines of argument about the impeachment exception, and is based on underlying facts I wrote about in three books that these pardon experts don’t know. I make no “promises” anywhere.
— Seth Abramson (@SethAbramson) December 24, 2020
What you know is that attacking someone with a following accrues new followers to you. You’re not offering a serious engagement with the ideas I presented, but a false assurance to your readers that you know who should and shouldn’t be listened to. It’s incredibly cynical of you.
— Seth Abramson (@SethAbramson) December 24, 2020
In my thread I note that the remedy for a pardon that’s an abuse of power is impeachment. The question I ask—perhaps you can answer it— is if a pardon so late in a presidential term to make impeachment impossible makes abusive pardons non-justicable in a way SCOTUS may object to?
— Seth Abramson (@SethAbramson) December 24, 2020
But a separate issue is the impeachment exception, which definitionally if violated can’t be remedied by Congress as to the impeachment itself. That therefore presumes there must be a judicial intervention in at least that circumstance. So impeachment cannot be the *only* remedy.
— Seth Abramson (@SethAbramson) December 24, 2020
Beyond justiciability and the impeachment exception, the thing I said some took exception to was that a pardon that’s also a high crime creates an Impeachment Clause-Pardon Clause conflict and is therefore illegal. Mind you, this is the premise Bill Barr *agreed with* under oath.
— Seth Abramson (@SethAbramson) December 24, 2020
[Photo by Al Drago/Getty Images]
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