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So, there has been a number of times when courts have rules against actions taken by the Trump administration on various different areas. Generally, to my knowledge, once these rulings have been made, the Trump administration has adhered to them.

It occurs to me, however, that it's possible that they might not actually need to. The penalty for violating a court order is being held in Contempt of Court, a criminal offense - however, the United States President holds the power of pardon.

Is it possible for the US President to pre-emptively pardon anyone held in Contempt of Court for violating a court order prohibiting his administration from carrying out a particular course of action? For instance, he might issue an Executive Order instructing federal agencies to ignore the court order, along with a granting pardon for anyone held in Contempt of Court for doing so?

I suppose that this question might also be generalized to "can the President order federal agencies to break the law, by granting them pre-emptive pardons to let them escape the consequences for doing so?"

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Your question essentially touches on the age-old Judicial vs Enforcement Powers. Or as President Andrew Jackson famously said back in 1832 "[Chief Justice] John Marshall has issued his decision, now let him enforce it!"

As such there are many legal and constitutional technicalities involved and such a scenario would definitely end up being reviewed by the Supreme Court. Even at the SCOTUS level I don't think there is any clear, objective answer and the ruling would probably end up being split among ideological lines, depending on who is President.

It may seem unlikely that the SCOTUS would issue the Executive a "carte blanche" but recall that Antonin Scalia argued for an Absolute (all powerful) Presidential Executive back in 1988.

At a Constitutional level, such an action, while potentially legal, would fundamentally violate the principle of separation of powers. One would hope that the Congress would act to immediately impeach a President who attempted to subvert all federal law via the Pardon Power.

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  • I think your answer is probably true in reality, but the answers to this question seem to be pretty definitive that the Judiciary has no power over presidential pardons. You might want to address why that's likely not the case in reality. Could the SCOTUS void a Presidential Pardon? – divibisan Sep 18 '20 at 22:30
  • A pardon is only as good as the court says it is. The Marshall incident works in the courts' favor here, not the president's. – phoog Sep 19 '20 at 0:14
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Is there anything stopping the US President from issuing pre-emptive pardons for officials that violate court orders?

Yes. Ex parte Garland established that pardons may only concern acts undertaken before the pardon.

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Firstly, the President can only pardon federal crimes, not state crimes.

Secondly, the precedent is that the President can only pardon crimes that have been committed. This principle predates the USA. The Head of State's ability to pardon implies an acceptance of guilt. For the president to "pardon" someone who hadn't committed a crime would imply that a crime had been committed...and so would contravene the "due process" clause (the convicted and pardoned person has had no chance to clear their name in court)

This whole area is "constitutionally untested" The common law has existed since time immemorial and in that time, the Head of State has not issued pre-emptive pardons. You may interpret this as implying that pre-emptive pardons are not possible. Until some President tries it and it is considered by the SCOTUS it will remain untested.

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    A pardon does not necessarily imply acceptance of guilt. Ex. any pardon of someone who was unjustly convicted of a crime they didn't commit. They also don't have to accept a pardon, either. – fyrepenguin Sep 18 '20 at 20:52
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    Regarding preemptive pardons, they might not be able to be issued before the crime is committed, but they can be issued before any criminal proceedings. And in the case of Nixon, he was pardoned for any crimes he committed while he was president. Ford said " grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974." He was given a blanket pardon for anything that he did during that time period. – fyrepenguin Sep 18 '20 at 20:54
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    The real sticking point is whether a pardon can be issued prior to the crime in question, and that will be an interesting legal battle. – fyrepenguin Sep 18 '20 at 20:55
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    @fyrepenguin "A pardon does not necessarily imply acceptance of guilt": that is not correct. For example, the Burdick decision repeatedly describes acceptance of a pardon as an implicit admission of guilt. Ex parte Garland established in 1866 that pardons cannot reach future acts. en.wikipedia.org/wiki/Ex_parte_Garland – phoog Sep 19 '20 at 0:08

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