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In a weirdly uncaptioned document, it was revealed last week that acting Attorney General Todd Blanche has birthed a tangled word salad that purports to “FOREVER” (twice and in all caps) prevent any part of the federal government from ever investigating “any matters” involving the Trump family and their corporate alter egos. Be it tax evasion, the corruption of foreign officials, or even hiring undocumented workers, Blanche would have us believe nothing can later be done by the law.
In the understandable rush to condemn the self-dealing inherent in the anti-weaponization fund, however, we may be missing another, hidden concern—the troubling claim to have general power to switch off law. It is more important to resist this claim than to heed the objections that have already been aired to Blanche’s declaration of civil immunity focused on a federal statute barring political interference with the IRS. For accepting Blanche’s claim of exceptional power would mean adding a new and destabilizing tool to the arsenal of presidents—one that not only lacks constitutional credentials, but will predictably be abused dramatically by executives of both parties.
Trump’s civil “pardon” is a legal nullity for a simple reason: Neither the executive branch nor the president have any constitutional power to bind future officials in this way. Since the government under Trump wasn’t about to investigate the president, Blanche’s order leaves things exactly where they were a week ago.
It is a basic principle of constitutional law that a government cannot bind its future self. The idea runs back at least to the influential 18th-century English jurist William Blackstone, who instructed that “Acts of parliament derogatory from the power of subsequent parliaments bind not.” The Supreme Court has repeatedly affirmed that this is true for our Congress. One Congress, the court said in 1932, cannot “impose itself upon those to follow.”
Pause for a moment and think about the very fact of our Constitution, and this no-entrenchment principle becomes self-evident. It is the sovereign people alone who can craft entrenched rules. They do so by enacting new constitutional text via Article 5. Even then, the people can reverse themselves (as happened with the amendments on Prohibition). If one Congress (or president) could create new rules that cannot be displaced by statute, it would steal that sovereign power from the people. Nothing in the Constitution gives elected actors this exceptional power.
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To be sure, Congress can create new private property or contract rights that cannot be undone later because they are shielded by other parts of the Constitution. If you buy land from the government, for instance, officials cannot simply seize it back without violating the Takings Clause. But Blanche’s words created no property interest and forged no contract.
If Congress has no power to bind its successors, where could the executive branch obtain such power? In creating the “anti-weaponization fund,” Blanche claimed to be acting on the basis of federal statutes. Yet if Congress cannot bind future elected actors, it follows that Congress has no power to delegate that power to the executive branch.
Here again there are exceptions, but these underscore the absence of constitutional authority for Blanche’s action. To begin with, courts have long allowed plea deals with criminal defendants, when offered as “inducement or consideration” by prosecutors. Once a deal is struck, however, it is binding if accepted by a court. Only then, the court has explained, “such promise must be fulfilled.” Plea bargains, that is, are compounded into a court’s judgments. And it is black-letter constitutional law that the executive cannot undo such judgments.
This leaves the president’s power to grant pardons. No one doubts that pardons are indeed irreversible. Yet the pardon power is circumscribed: It applies only to criminal “offenses,” excluding impeachments. And it can be exercised only by the president in person. This was the basis for the Justice Department’s 1974 (never repudiated) conclusion that a self-pardon is impermissible because no one can be the judge in their own case. Trump himself recognized the personal quality of the pardon power when he ordered investigations into President Joe Biden’s use of an autopen for clemency decisions. Also, critically, pardons cannot be offered for future offenses.
The care the Framers took in delineating this irreversible presidential power—requiring the president’s personal involvement, and limiting it to certain federal criminal matters—is telling. It suggests that no other irreversible power to immunize lurks in the Constitution’s silences.
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No doubt, Blanche was careful to avoid the language of pardons for fear of political backlash. His care in working around that power, though, makes plain that he was claiming a new and distinct power lacking roots in the constitutional text or tradition.
Conceding the existence of an executive power to say that legislative commands do not apply, now or ever, to certain persons as a matter of ordinary civil law would be a terrible mistake. Just imagine how it might be used—by either a Republican or a Democratic administration. At the close of his term, Trump might declare permanent amnesty for everyone who’s violated the Clean Air Act or the securities laws. Next, a President Gavin Newsom or Josh Shapiro could do the same for the immigration statutes. And since the power that Blanche has seized has no basis in the Constitution, it lacks limiting principles in the text. So perhaps it could be used to simply strike statutes from the books permanently.
There is, no doubt, good cause to call out the deep and extensive corruption of this administration, exemplified in Blanche’s civil pardon. But it is better to recognize, and reject, that deeper, more destabilizing attack on the very idea of law lurking beneath.
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