When Trump issued his ban on transgendered service members in an early morning Tweet, some quickly took the clickbait to say he can’t issue orders via Tweet. This is a country of laws they’d argue, and 140 character outbursts can’t rule the land. This was, of course, completely untrue but it made other liberals feel good.
The problem that day was that while the implementation questions would take time to resolve — and it looks like they’ve been worked out — Trump’s role as commander-in-chief did, in fact, afford him the authority to make sweeping changes to military policy without any formal writeup. He issued an order that day and, even if it was a Tweet, he bound those officers to make it a reality. There may be other legal problems with his policy, but issuing it via Tweet wasn’t one of them.
At a recent Phoenix meetup, Trump coyly danced with issuing a pardon to let Sheriff Joe Arpaio off the hook for criminal contempt after he brazenly declared that he would disregard court orders.
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You know what, I’ll make a prediction: I think he’s going to be just fine. OK? But I won’t do it tonight, because I don’t want to cause any controversy.
The possibility that Trump could throw more red meat at his white supremacist followers and deal a blow to the sanctity of the judicial branch by pardoning Arpaio has more worried critics questioning Trump’s ability to issue pardons. The dying ember of hope being nourished here — as it was with the transgender ban — seems to be that if any process is sufficiently complex Trump just won’t do it. Or at least some wiser head — in the Pentagon, in the Justice Department — will prevail and put a stop to it.
Let’s extinguish that ember of hope. Trump can tweet out a pardon from his bathroom and it’s just as effective if he papered up something on nice parchment. The president’s power to pardon is that extensive. A 1929 memo — obtained by USA Today — prepared by the Office of the Solicitor General, and relied upon as recently as the Obama administration, sets the parameters of pardon power:
Neither the constitution nor any statute prescribes the method by which Executive clemency shall be exercised or evidenced,” reads a memo from the Justice Department. “It is wholly a matter for the President to decide, as a practical matter of administrative policy.
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The power to pardon — like the powers of the commander-in-chief — don’t have many limits in the Constitution. You think something as important as a pardon deserves more painstaking detail? The Constitution is only four pages long! It’s basically the Tweet of its day and it set up a 200+ year country.
Go ahead and mourn the Framers for their naïveté, but don’t go looking for procedural offramps from a presidency run amok.
No need for paperwork: Trump could pardon Sheriff Joe Arpaio in a tweet [USA Today]
Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.