GateHouse: There are limits on the president’s power to pardon

Matthew T. Mangino

GateHouse Media

March 30, 2018

Last week, the president’s personal lawyer, John Dowd, resigned. On the surface, it doesn’t seem like a big deal. Nearly 40 Trump Administration aids and officials have resigned or been fired since inauguration day.

Recent revelation may signal that Dowd’s departure is a bigger deal than originally thought. The New York Times reported this week that Dowd discussed the possibility of a presidential pardon with lawyers for Michael Flynn and Paul Manafort.

Flynn, the former national security adviser to the president, pleaded guilty to lying to the FBI about conversations with Russia’s ambassador. Manafort, a former Trump campaign manager, is charged in a “scheme” in which he allegedly laundered $30 million, failed to pay taxes for almost 10 years, and used real estate he owned to fraudulently secure more than $20 million in loans.

The president has the authority to pardon anyone. However, if the pardon is self-serving — an effort to muzzle potential witnesses in an investigation involving the president — then that could be obstruction of justice.

Fordham University Law School professors Jed Shugerman and Ethan J. Leib recently wrote in the Washington Post that “the Constitution, correctly understood, imposes limits on a president’s ability to grant pardons if they are issued for the purpose of self-protection.”

Shugerman and Leib suggest the answer “lies in a neglected part of the Constitution: Article II, Section 3, which directs that the president “shall take Care that the Laws be faithfully executed.’“
If the president pardons Flynn and Manafort primarily out of a motivation to protect himself, those pardons may be invalid as disloyal and federal courts could allow those prosecutions to proceed even with a presidential pardon.

The “Take Care Clause,” as it is referred to, is also the provision that provides the authority to prosecutors as appointees of the president. The United States Supreme Court has ruled that prosecutors ”(A)re designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’”

Ironically, the clause that could limit the president’s authority to pardon is the very provision that provides the president the authority to enforce the laws and exercise the executive branch of government’s prosecutorial function.

Shugerman and Leib wrote, “Our Constitution’s designers wanted public officials to be subject to the same kinds of fiduciary obligations that CEOs, trustees and lawyers are routinely held to in the private sector. Those duties prohibit self-dealing and acting under a conflict of interest.

Therefore, “self-pardoning” or pardoning your closest associates for self-interested reasons should not pass legal muster, because it violates the fiduciary law of public office.”

Political pardons are nothing new, but using the authority for self-dealing is.

President Gerald Ford pardoned Richard Nixon after he resigned. Ford pardoned the man who made him president one month earlier. Ford said he did it to end a “national nightmare.“
President Bill Clinton pardoned wealthy businessman Marc Rich in the waning days of his administration after Rich’s ex-wife donated to Clinton’s legal defense fund.

President George H. W. Bush said “honor, decency and fairness” prompted the pardon of former Reagan Administration defense secretary Caspar Weinberger, who was under indictment at the time for lying to Congress during the Iran-Contra investigation.

During the Reagan Administration a federal court ruled, “The prosecutorial function, and the discretion that accompanies it, is thus committed by the Constitution to the executive, and the judicial branch’s deference to the executive on prosecutorial decision-making is grounded in the constitutional separation of powers.”

The Constitution provides the president with the authority to faithfully execute the laws of the land and appoint prosecutors to carry out that authority. The president also possesses the authority to relieve an individual from the burden of prosecution or conviction. Both must be carried out in good faith and with fidelity — absent the influence of personal advantage.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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51 percent of Americans support LWOP over the death penalty

U.S. voters support the death penalty for murderers by a 58 to 33 percent margin, but they choose the option of life in prison with no chance of parole, 51 to 37 percent, reports the Quinnipiac University Poll. Quinnipiac says that was the first time a majority backed the life without parole option since the poll first asked the question in 2004.

Democrats back the “life” option by 73 to 19 percent. Women back “life” 56 to 33 percent; among men, 45 percent back the “life” option and 42 percent support the death penalty. Imposing the death penalty for people convicted of selling drugs that cause a lethal overdose was opposed, 71 to 21 percent. “It’s a mixed message on a question that has moral and religious implications. Voters are perhaps saying, ‘Keep the death penalty, but just don’t use it,” said Tim Malloy, assistant director of the survey.

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Texas executes suitcase killer

The 7th Execution of 2018

Texas executed Rosendo Rodriguez on March 27, 2018. He was convicted of murder for suffocating a prostitute, placing her lifeless body in a suitcase and tossing it into a garbage dumpster in 2005.

Rodriguez, who just turned turned 38, was put to death by lethal injection at the state’s death chamber in Huntsville, reported Reuters.

The execution was the seventh this year in the United States and the fourth in Texas, which has executed more inmates than any state since the U.S. Supreme Court reinstated the death penalty in 1976.

Attorneys for Rodriguez had filed a last-ditch appeal to spare his life, seeking judicial review after they questioned the integrity and findings of medical examiners in Lubbock relating to the autopsy on the victim, Summer Baldwin, 29. The U.S. Supreme Court denied the appeal less than an hour before the planned execution.

Texas argued the exact cause of Baldwin’s death as determined by a medical examiner does not mitigate the fact that Rodriguez’s actions directly led to her death.

The body of Baldwin, described by the Texas Court of Criminal Appeals as “a drug-addicted prostitute,” was found in a suitcase in a Lubbock landfill in September 2005. A police investigation found the suitcase had been recently purchased and paid for by a debit card belonging to Rodriguez, court papers showed.

Baldwin’s blood was later found in a hotel room where Rodriguez had stayed. Rodriguez, later dubbed “the suitcase killer” was arrested and confessed to police, prosecutors said.

In his last statement, he offered thanks to prison staff and said the lives of his fellow death row inmates are worth knowing about.

“Today is the day I join my God and father. The state may have my body but not my soul,” Rodriguez was quoted as saying by the Texas Department of Criminal Justice.

“Lastly, I want everyone to boycott every single business in the state of Texas until all the businesses are pressed to stop the death penalty,” he was quoted as saying.

In a police statement admitted at trial, Rodriguez said he had sexual intercourse with the victim and placed her in a choke-hold until she lost consciousness and had no pulse. He then purchased the suitcase, stuffed Baldwin inside and threw the suitcase into a dumpster, prosecutors said.

He also admitted to murdering Joanna Rogers, 16, in 2004, stuffing her body in a suitcase and throwing the it away, prosecutors said. His death sentence was for Baldwin’s murder.

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Presidential pardons: There are limitations

Jed Shugerman and Ethan J. Leib professors at the Fordham University School of Law write about the limitations on presidential pardons for purposes of self-dealing.

If President Trump is counting on his pardon power as a way of eluding special counsel Robert S. Mueller III, he is mistaken. He is ignoring a core part of the Constitution that most of us have overlooked, too. Most people assume that the president wields absolute authority to pardon others and potentially even himself. However, the Constitution, correctly understood, imposes limits on a president’s ability to grant pardons if they are issued for the purpose of self-protection.

This is not because of some abstract notion of political morality or a vague commitment to the rule of law. It is not because of the maxim, “No one may be the judge in his own case,” because a pardon is an executive action, not a judicial act.

Rather, the answer lies in a neglected part of the Constitution: Article II, Section 3, which directs that the president “shall take Care that the Laws be faithfully executed.”

Underscoring that directive is the fact that the only oath whose precise formulation is detailed in the Constitution is the one taken by the president: “I do solemnly swear (or affirm) that I will faithfully executethe Office of President of the United States.” The Constitution refers to many offices as “Office[s] of Trust,” invoking the legal concept of trusteeship, but the president’s faithfulness is the one most explicitly commanded by the document.

The language of faith here is no accident: The concept flows from the Latin “fiducia,” meaning faith. Lawyers in the 18th century used the phrase “faithfully execute” in legal instruments such as trusts to impose duties of loyalty and care to others, and the phrase appears in many colonial corporate charters and early state constitutions. The phrase “faithfully execute” incorporates the president’s obligation to have fidelity to the best interests of the people. Think of the common-law concept of fiduciary duty applied to lawyers and agents, transplanted to the public sector. These commitments are as foundational to constitutional law as they are to business ethics and corporate law.

The framers imported the well-known fiduciary duty of loyalty from the common law precisely to constrain the exercise of the president’s powers under the Constitution. They used the language of faith and trust to signal to courts and to officials that they were invoking well-known commands of loyalty long recognized at common law. Our Constitution’s designers wanted public officials to be subject to the same kinds of fiduciary obligations that CEOs, trustees and lawyers are routinely held to in the private sector. Those duties prohibit self-dealing and acting under a conflict of interest.

Therefore, “self-pardoning” or pardoning your closest associates for self-interested reasons should not pass legal muster, because it violates the fiduciary law of public office. If the president tries to pardon himself, he is engaged in blatant self-dealing, transgressing both his oath and the primary prohibition to which all fiduciaries are subject. If the president pardons his associates primarily out of a motivation to protect himself, those pardons would also be invalid as disloyal, and federal courts should probably allow those prosecutions to proceed notwithstanding the pardon; indeed, even if a president succeeds in releasing a pardoned criminal, a successor president would not have to recognize an invalid pardon. The extent to which courts will entertain these limits on the pardon power of the president is as yet untested — but courts through the ages have directly enforced the fiduciary duties of office against public servants. Ultimately, a president is not allowed to put his own narrow interest over the public interest because he is constrained by his oath and his office.

The “faithful execution” clause also has implications for the president’s power to fire executive officials. The Constitution does not explicitly mention a power to fire. This oversight had to be addressed in the first Congress in 1789, and thereafter, the president’s unilateral power to dismiss executive officials became a matter of judicial interpretation. Yet while the presidential power to remove is, at most, implicit, the fiduciary nature of the office is explicit. Therefore, firing a special counsel for largely self-protective reasons would violate the president’s obligation to act for only the right kinds of reasons. With strong enough evidence of motive or purpose, a special counsel such as Mueller might even be able to obtain an injunction to block such an impermissible firing.

To sustain our framers’ vision of a Constitution with offices filled by public fiduciaries, we must find ways to enforce the president’s oath and his legal responsibility of “faithful execution.” That means executive powers that can sometimes look discretionary actually must be limited by fiduciary principles. Thus, a president faithful to the Constitution’s original meaning and faithful to the public, rather than his own self-interest, may not legally issue self-dealing pardons, nor may he fire executive officials largely to protect himself.

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Friendly fire: Shooting friends and family in mistaken act of "self-defense"

Since 2015, at least 47 Americans have shot friends, loved ones, roommates, or emergency responders they said they’d mistaken for home intruders, killing 15, according to an analysis of gun violence incidents by BuzzFeed News and The Trace. In at least 27 of those cases, criminal charges were dismissed or never filed because authorities deemed the shootings accidental, an act of self-defense in a moment of panic.

For years, gun-rights advocates have promoted the use of firearms by arguing that “to stop a bad guy with a gun, it takes a good guy with a gun,” a refrain National Rifle Association executive vice president Wayne LaPierre repeated in a speech in late February. Pro-gun media outlets, like Bearing Arms, which has around two million followers on its Facebook page, and Active Self Protection, which has more than three-quarters of a million subscribers on its YouTube channel, highlight cases of armed civilians warding off attackers. In the days following the February 14 shooting at Marjory Stoneman Douglas High School in Florida that left 17 dead and 14 wounded, President Donald Trump and others called on school districts to arm teachers for the safety of their students, an idea originally proposed by the NRA in 2012 after the mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. “When a sick individual comes into that school, they can expect major trouble,” Trump said of the proposal during a White House press briefing. “The bullets are going to be going toward him, also.” Earlier this month, Florida passed a law allowing some teachers to carry guns in the classroom.

But good guys with guns don’t only shoot bad guys with guns. In the sudden, blurry, urgent split seconds when a threat bursts into view, the impulse to pull the trigger can overwhelm the need to accurately identify the target, leading to snap decisions that bring permanent tragedies.

A 2016 survey by researchers at Harvard and Northeastern universities found that 63% of gun owners said that self-defense was a primary motivation for owning a firearm — significantly more than cited hunting or other sporting use. Sales data reflect this: Since 1994, the number of long guns like rifles and shotguns — which are often used for hunting — owned by civilians rose by 21% while the number of handguns, more portable and easier to conceal, rose by 71%.

The national violent crime rate today is less than half of what it was in 1994, according to FBI statistics, but the drop in crime has barely altered Americans’ perception of their safety. A 2016 Pew Research Center poll found that 57% of registered voters falsely believed that crime had increased since 2008. Even as the threat of crime has sunk, the demand for weaponized protection has soared. From 1998 to 2005, fewer than one million pistols were manufactured each year in the United States; since 2012, at least three million have been manufactured annually, according to Department of Justice data.

Many of these handguns are in homes. Many never fire a bullet into a person. But that can change in a flash.

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The Massachusetts gun model could save 27,000 lives a year

In America, guns are a fact of life — and too often a cause of death. In all, 38,658 people died from gunshots in 2016, reported the Boston Globe. Some were murdered; others took their own lives. Some were killed by accident.

But none of them had to die.

• Nearly 60 percent of those gun deaths were suicides.
• About 37 percent were homicides.
• Most of the rest were accidental or undetermined.

Massachusetts had the lowest gun death rate in the country in 2016: About 3.5 per 100,000.

People killed by guns in Massachusetts represent a small fraction of those killed nationally.

Many factors contribute to the prevalence of gun deaths. Rates of gun ownership — also relatively low in Massachusetts — and factors such as geography, education, and availability of health care all contribute.

Yet the death rate in Massachusetts is low not just because of good hospitals and favorable demographics, but also because our laws foster a more careful coexistence with guns. If every state had the same gun death rate as Massachusetts, some 27,000 lives could have been saved.

Our laws could and should go further, but they recognize this much: Focusing on the cause of death — the weapons — is the best chance we have to keep more people alive.

Saving lives is a choice. It’s a choice the people of Massachusetts have made on a bipartisan basis, bit by bit, over decades. In the wake of the latest in a long line of mass killings, people all over the country appear ready to make similar choices. Some 67 percent of the country supports tougher gun laws, the highest level of support in more than three decades.

Here are seven common-sense laws, all of which are consistent with the Second Amendment, and all of which have been shown to make living with guns safer.   

If Pennsylvania had the same gun death rate as Massachusetts, about 1,100 fewer people would have been killed by gunfire in 2016.

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The Vindicator: Teachers should not be armed

Matthew T. Mangino

The Vindicator

March 25, 2018

There was yet another school shooting last week – this one in Maryland. A school resource officer shot and killed the assailant after two students were gravely wounded. This will further intensify the debate over arming teachers.

President Donald Trump and the National Rifle Association argued in the aftermath of the massacre in Parkland, Fla., that enabling teachers to shoot back could save lives and could deter potential shooters from entering a school.

Trump clarified that he believes only those “adept” at using firearms should be armed not all teachers.

Teachers already are carrying concealed guns in a handful of states, including Ohio.

The idea of arming teachers is rooted in the NRA rhetoric that the only thing that can stop a bad guy with a gun is a good guy with a gun. However, as America watched video footage from the Parkland shooting, the good guys with guns stayed outside the building while the bad guy was firing away.

School shootings

According to the Washington Post, since 2000 there have been school shootings in 43 of the 50 states which have left about 250 students, and teachers, dead. Even one student losing his or her life in, or around, a school is a horrific tragedy.

Between 2002 and 2014, 6 percent of all gun-related deaths involving children 17 and under were unintentional or accidental deaths. According to The Journal of Pediatrics. the average number of children killed by gunfire annually is about 1,300. That means in the 13 years between 2002 and 2014 about 1,000 children died as a result of accidental shootings, four times the number of students intentionally killed in school shootings.

Therefore, bringing more guns into schools is not the answer.

Recently, a teacher at a northern California high school accidentally fired his gun inside a classroom, causing minor injuries to three students.

The teacher, a reserve police officer “adept” at firearms, was pointing the gun at the ceiling to make sure it was not loaded when it discharged inside his classroom.

Accidents happen all the time in schools. However, an accident with a gun can be fatal.

Written permission

In Ohio, a school board can give written permission to a teacher to carry a firearm into a school.

Without written permission even a teacher with a concealed-carry license must leave his weapon in the vehicle, according to Ohio Senate Bill 199, passed in March of last year.

Austintown Superintendent Vince Colaluca told The Vindicator this month that it is illegal to bring a firearm onto school grounds. An exception to the rule is an armed police officer.

“You go into education because you want to help kids become better citizens,” Colaluca told The Vindicator. “As long as we’re financially capable to provide the protection, we’ll continue to do so.”

There are school boards in Ohio that have authorized teachers to carry weapons but they don’t have to tell parents or the public.

“[S]chool boards do not have to publicize the fact that they’re allowing teachers to arm themselves,” Sara Clark, legal counsel for the Ohio School Boards Association, told the Columbus Dispatch. She said she is unaware of an official list and couldn’t estimate how many of Ohio’s 610 public school districts might allow teachers to carry weapons.

Free teacher training

Since 2013, the nonprofit, pro-gun, Buckeye Firearms Foundation has been offering free firearm training specifically for educators. On its website an essay is posted that provides, “Some kids need chemo. Some need armed protection. The fact that both are “rare” events is of little comfort when yours is the child in need.”

The fact that a child needs chemotherapy is devastating – but other students are not at risk during treatment. More guns in school increases the likelihood of an accident that can lead to a student’s injury or death.

Matthew T. Mangino, a fromer district attorney in Lawrence County, Pa., is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book”The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

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