Doj Claims It Has The Power To Decide Who Gets Trump’s Sweeping 2020 Pardon

When Donald Trump issued a sweeping pardon for allies in his bid to subvert the 2020 election, he stretched the boundaries of the pardon power in unprecedented ways.

The pardon’s language is so vague and limitless that it could apply to thousands of people. And now Trump’s Justice Department says it’s up to Attorney General Pam Bondi and Pardon Attorney Ed Martin to decide who, and which possible crimes, Trump actually meant to cover.

There’s no modern precedent — and maybe no historical precedent, either — for a president to delegate his pardon power to subordinates on a pardon this vaguely worded.

Even past examples of blanket pardons, such as Andrew Johnson’s sweeping clemency after the Civil War, Jimmy Carter’s pardon for Vietnam-era draft dodgers and Joe Biden’s pardon for marijuana offenses relied on more explicit criteria.

The most comparable pardon, experts say, is Trump’s Inauguration Day pardon for the perpetrators of the Jan. 6, 2021 attack on the Capitol — a pardon so vague that it spawned legal battles across the country about whether Jan. 6 defendants could apply it to crimes that had nothing to do with the riot. Courts splintered over how much weight to give the Trump administration’s after-the-fact interpretation.

Trump’s latest blanket pardon applies to “all United States citizens for conduct relating to the advice, creation, organization, execution, submission, support, voting, activities, participation in, or advocacy for or of any slate or proposed slate of Presidential electors … in connection with the 2020 Presidential election.” And while Trump identifies 77 recipients, he emphasizes that the pardon is not limited to the initial list. Trump then charges Bondi and Martin to issue pardon certificates to “eligible applicants.”

Pardon experts say this unusual delegation of pardon power is exacerbated by the vague language of the pardon itself, essentially leaving decisions about who’s covered to the judgment of Trump’s subordinates.

“When I was at the Justice Department, we would have taken the position that the president could not delegate the decision about who’s covered,” said Liz Oyer, Martin’s predecessor as pardon attorney, who was fired in the early days of the Trump administration. “Ultimately, the decision has to be the president’s and it can’t be left to the discretion of the pardon attorney.”

Any tension between what Trump actually intended and how his aides interpret it — including in Martin’s unusual 15-page analysisof the pardon on the day it was issued — will likely be resolved in the courts.

“I don’t know whether they will defer to the pardon attorney’s reading of the pardon. This is Donald Trump’s act, not Ed Martin,” said Saikrishna Prakash, a University of Virginia law professor and author of the forthcoming book “The Presidential Pardon: The Short Clause with a Long, Troubled History.”

Prakash noted that George Washington appeared to delegate pardon power when he dispatched Virginia’s governor to promise clemency to perpetrators of the Whiskey Rebellion in 1794. But there have been few efforts since then to clarify the president’s ability to delegate pardon authority.

Bernadette Meyler, a Stanford University law professor, said there’s an irony in Trump leaving key pardon decisions up to his Justice Department after persistently claiming that Joe Biden had not personally authorized certain pardons because they were signed with an autopen

“In this instance, it would be Ed Martin, not the president, authorizing a variety of pardons,” Meyler said.

The proposition is already being tested in a federal court in Pennsylvania. Matthew Laiss is facing federal charges for casting presidential ballots in both Pennsylvania and Florida — he says they were for Trump — and says the case should be dismissed because Trump has pardoned him.

The Justice Department countered Friday, saying Trump didn’t intend to pardon people like Laiss and that Martin “does not believe” the pardon applies in this case.

“The government has consulted with the Office of the Pardon Attorney about Laiss’s motion and can ‘explicitly confirm’ that, in the view of the executive branch, Laiss is not covered by President Trump’s November 7 pardon proclamation,” prosecutors wrote. Martin’s determination should be accorded “high deference,” they added, saying that a court could only reverse the interpretation if it were “unreasonable.”

What’s more, DOJ says the court should not undertake its own attempt to interpret Trump’s pardon. “Laiss cannot petition this Court to circumvent the executive agency tasked with issuing pardons and effectively issue a judicial pardon,” Assistant U.S. Attorney Mark Dubnoff wrote in the filing.

The decision, at least at first, will fall to U.S. District Judge Joseph Leeson, an Obama appointee presiding over Laiss’ case, which is scheduled for trial in January. Leeson has called a Monday hearing on Laiss’ pardon gambit.

Laiss, on the other hand, says the administration’s view should be accorded little weight.

The “plain language” of Trump’s pardon, his attorneys say, covers his alleged crime. They also argue that Trump’s pardon of close allies like John Eastman, Rudy Giuliani, Mark Meadows and others identified as co-conspirators in the 2020 effort would be an “outrageous” outcome “while a then-26-year-old man who cast two votes for President Trump” was punished.