A
week ago Sunday, Jeanine Pirro, the U.S. attorney in Washington, told CNN’s State of the Union that she would appeal the order voiding
grand jury subpoenas against Federal Reserve Chair Jerome Powell and further indicated
a willingness to pursue the case against Powell anew. But less than two weeks earlier, on April 24,
the Department of Justice had announced it was dropping that same criminal investigation. It appears that any commitment the President
makes today can be rescinded tomorrow.
That
credibility problem is now blocking the normal transition of leadership at the
Fed. The President wants Jerome Powell out
as a Fed Governor, because Powell’s seat, which runs through early 2028, gives
Powell a vote against the interest-rate cuts that the President desperately
wants.
But
resignation strips Powell of the institutional protection that has, so far,
kept the Justice Department at bay. Federal
district judge James Boasberg quashed the original grand jury subpoenas
— for alleged misstatements to Congress about the Fed's headquarters renovation
— because their “dominant (if not sole) purpose is to harass and pressure
Powell either to yield to the president or to resign and make way for a Fed
chair who will.” That improper-motive
finding evaporates the moment Powell is no longer at the Fed. The DOJ has pursued former FBI director James
Comey twice since he left government service; nothing in the law would stop the
DOJ from coming after Powell after he resigns.
Powell
can be forgiven for wanting assurance, before resigning, that the criminal
investigation is “well and truly over with finality
and transparency.”
A
conditional pardon might give both sides what they want. Such a pardon, conditioned on Powell’s prompt
governorship resignation, would credibly discharge Powell’s exposure to
prosecution, while simultaneously giving conceding to the President an
additional appointment to the Board of Governors.
Presidential
pardons are not self-executing. Like
contractual offers, they can be rejected by the potential pardonee. Moreover, a President is free to attach
conditions to acceptance. As my
colleague Stephen Carter has summarized, “One who accepts the pardon
agrees to the conditions; and those conditions, unless they demand an illegal
act or are impossible to perform, become legally binding.”
Conditional
pardons of this sort are hardly a modern invention. Presidents have used them since the early
Republic to attach strings to clemency.
In 1829, Andrew Jackson pardoned one recipient on the condition that he
learn “some beneficial trade” — essentially, that he get work and become
self-supporting. Other presidential
pardons have required recipients to serve in the military, leave the country,
or otherwise accept limits on their freedom as the price of forgiveness.
Presidents
would do well to continue this tradition more deliberately. For example, President Biden did his son and
the public no favors when he granted Hunter a “full and unconditional” pardon. Hunter Biden has publicly acknowledged a
history of addiction, and federal law bars
gun possession by users of controlled substances. The President’s pardon could have made
Hunter’s agreement not to purchase or possess firearms a condition of clemency.
A
meaningful concern is whether offering Powell a conditional pardon would look
like asking an innocent man to confess.
The Supreme Court observed in Burdick v. United States
that a pardon "carries an imputation of guilt; acceptance a confession of
it." Moreover, accepting this pardon might set a harmful precedent of
normalizing a kind of presidential extortion.
To
be clear, in putting forth the possibility of a conditional pardon, I am not
suggesting that Powell broke the law.
Indeed, to my mind, the public record supports Judge Boasberg’s conclusion that “the government has offered
no evidence whatsoever that Powell committed any crime other than displeasing
the president.”
But
the possibility of vindictive prosecution is unfortunately no longer a
hypothetical possibility. The realistic
question is not whether to engage with the President's leverage, but whether to
convert it into something binding.
We
tend to think of pardons as presidential largess, which, like mercy, “droppeth as the gentle rain from
heaven.” But in this case, a pardon
would be a commitment device that would tie the president’s own hands. Once accepted, the president could not rescind
it, the Justice Department cannot revisit it, and Powell would exit with the
protection that resignation alone would otherwise strip away.
Powell
might choose to reject an offered conditional pardon. He has indicated that he might stay on even if
the criminal investigation were dropped once and for all, saying that his
decision would be guided by what he believes would be in “the best interest of the
institution and the people we serve.”
Recent Fed chairs have honored the tradition of stepping down from their governorships when their terms as Chair end. A conditional pardon would grant Powell the opportunity to continue that tradition gracefully — and would turn the abused executive power that created this credibility problem into an instrument that resolves it.