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Sunday, August 27, 2017


One of the incidental benefits of having really smart children is that they are a go-to source of wisdom on many subjects.  There has been a good deal of talk about the possibility that Trump would seek to frustrate the Mueller investigation by pardoning everyone in sight as soon as Mueller got close.  TV commentators oponed that should Trump do this, the recipients of the pardons would then have forfeited their 5th Amendment rights and could be compelled to testify before Congressional committees.  This led me to ask the following question of my son, Tobias Barrington Wolff, who is, among other things, one of the leading experts of his generation in the legal field of Civil Procedure:

“Suppose Trump pardons, say, Manafort, for whatever, and Congress compels his testimony, denying him the privilege of taking the 5th because he has been pardoned.  Suppose Manafort refuses to answer and is charged with Contempt of Congress.  Does Trump have the power to pardon him for that as well?”  Back came the following reply:

“Yes, that lies within the powers of the presidency, but with some caveats. First (and stating the obvious) that would presumably put rocket fuel under the calls for impeachment. The Supreme Court has held explicitly that the pardon power extends to criminal contempt proceedings in federal court. The same ruling would apply to contempt of Congress. In that ruling (Ex Parte Grossman, from 1925), the Court also indicated that an abusive use of the pardon power in such cases, if such a thing were to happen, would be remediable through impeachment:

"If it be said that the President by successive pardons of constantly recurring contempts in particular litigation might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this if to be imagined at all would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President."

It is entirely possible that the unstable madman in the Oval Office has told Manafort that he should stick by him no matter what and he will engage in extravagant uses of the pardon power, but I think it would result in his removal by impeachment very quickly. In addition, the pardon power can only nullify criminal liability. In that same ruling of Ex Parte Grossman, the Court made clear that the pardon power has no impact on civil contempt proceedings. This is a  distinction that is not widely understood. When a person refuses to testify and gets put in jail until he is willing to comply with the court's order (like in the high-profile cases involving reporters), that is a civil contempt proceeding, not criminal contempt, even though jail is involved. I address this issue in my casebook, as it happens. Here is the section where I lay out the basics of the doctrine:

Contempt sanctions can be either "civil" or "criminal" in nature, though this terminology can be somewhat counterintuitive. The distinction between civil and criminal contempt does not arise from the nature of the underlying proceeding — a civil lawsuit can give rise to either civil or criminal contempt. Nor does it depend primarily on the nature of the actions undertaken by the individual who violates the injunction, nor even on the use of imprisonment as a sanction, which courts can employ in a limited fashion in a civil as well as a criminal contempt proceeding. Rather, the distinction between "civil" and "criminal" contempt refers to the goal that the court seeks to accomplish by imposing the sanction.

Civil contempt sanctions are remedial in nature and aim to secure compliance with the court's order. When a court imposes fines in a civil contempt proceeding, it does so in order to compensate the injured party for the harm it has suffered as a result of the violator's actions, which may include attorneys' fees and other costs associated with enforcing the order. Courts may also impose a prospective schedule of fines to secure compliance and deter future violations, providing, for example, that a party will be fined some substantial sum of money for every day that it violates the injunction going forward. Courts can even imprison a party who refuses to abide by a court's order. One controversial example of this form of civil contempt can occur when a reporter refuses to comply with a discovery order or subpoena requiring her to reveal her journalistic sources or otherwise disclose information she has promised to keep confidential. Jail time is a proper part of a civil contempt sanction only when it aims to secure compliance with the court's order. Thus, a reporter who is jailed in a civil contempt proceeding retains the ability to release herself at any time by complying with the order of the court, and her imprisonment cannot last longer than the underlying proceeding in any event, since the remedial purpose of her imprisonment ceases once the order or injunction is no longer active.
Criminal contempt sanctions, in contrast, aim to punish parties for flouting the authority of the court. The basic tools of enforcement available to the court in a criminal contempt proceeding — fine and imprisonment — are the same as they would be in a civil proceeding, but the sanctions that the court imposes in a criminal proceeding are not limited to strictly remedial purposes. Thus, a court can impose a period of incarceration in criminal contempt proceedings that will last well beyond the termination of the underlying action, and the target of the criminal sanction cannot win her release by agreeing to comply with the court's order in the future. Similarly, when a court imposes a fine as a criminal contempt sanction, the defendant pays the fine to the court as punishment for his actions, rather than to his adversary as compensation.
So, even if he is willing to abuse the powers of his office without restraint, there are some limitations on his ability to subvert the rule of law prospectively — providing that Congress is prepared to enforce those limits. And Manafort, who has real lawyers (unlike the grifter), is probably aware of those limitations.

I think you can take that one to the bank.


J. W. F. said...

Hamilton in Federalist 74:

"As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

"The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.

"On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall."

Trump appears to lack any of the moral sentiments or prudence that Hamilton argues will constrain the use of prerogative power. It seems that Shay's rebellion tipped the scales (at least for Hamilton) with respect to the matter of whether to vest the power of clemency in the legislature in case of treason and sedition. Hamilton reasons that sedition is likely to be widespread and thus more apt to corrupt representatives.

Jerry Brown said...

It seems you have received a well researched and reasoned legal opinion from Tobias Barrington Wolff. Have you received the bill for that yet? I hope you get a family discount, otherwise it might cost you and you really have no defense from not paying, since you have already publically admitted it was good. Perhaps you could argue there was no formal contract? Maybe you need to ask a lawyer, but it does seem they mostly stick together on the matter of billing. Good luck with this one, I think you're going to need it- This Tobias sounds like he knows what he's doing.

levinebar said...

Having dispensed (at least by implication) with Redish's imaginative argument that Trump's pardon of Arpaio is unconstitutional, perhaps professor Wolff will opine on the possibility that Trump may be guilty of witness tampering if his pardon of Arpaio is intended to telegraph to Flynn, Manafort, and Page that they can expect such pardons if they defy SpecialCounsel Mueller's inquest?

(with apologies. I couldn't find a clearer way to articulate that.)

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