The Law Against Family Separation

Abstract

Most commentators assume that, except for the few restrictions expressly mentioned in the U.S. Constitution, the President\u27s pardon power is unlimited. This Paper suggests that this common view is mistaken in at least one unexpected way. Presidential pardons must satisfy a modest procedural rule: they must list the specific crimes covered by the pardon. The specificity requirement means that vague and broadly worded pardons are invalid. This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. This Paper\u27s argument rests on an originalist understanding of the constitutional text, an approach that the Supreme Court has repeatedly endorsed as the appropriate method for interpreting the Pardon Clause. That approach leaves little doubt that a specificity requirement is a binding limitation on the President\u27s pardon power. The final part of this Paper examines the ramifications of the specificity requirement for federal criminal investigations, particularly investigations into Russia\u27s interference in the 2016 presidential election. The specificity requirement may prove surprisingly significant in this latter context, since it both raises the political costs, and narrows the legal scope, of any pardon the President might grant to former campaign advisors. In effect, the requirement strengthens the hand of investigators, increasing the likelihood that defendants will cooperate with the prosecution. In so doing, the specificity requirement serves as an unexpected ally in the fight for political accountability and in defense of the rule of law