Welcome back, Deadline: Legal newsletter readers. The Supreme Court wrapped up its first two-week hearing session of the term, while adding a DOGE-related case to the docket, handing the GOP another emergency win ahead of the midterms, and giving John Eastman a spark of hope for his law license.

The DOGE grant appeared on Tuesday’s order list announcing the latest action on pending petitions. Among the new cases the justices agreed to decide this term was the Trump administration’s plea for help against a watchdog group that has been fighting for information about the Elon Musk-backed Department of Government Efficiency.

In a previous round of DOGE litigation, the high court’s Republican-appointed majority ordered the lower courts to narrow discovery into the purported efficiency initiative. The administration is hoping to prevail again in its latest fight for secrecy.

The order list also produced a notable pairing in Justices Sonia Sotomayor and Neil Gorsuch. The two have joined forces before to call out what they’ve seen as government abuses, even when their colleagues have stayed silent. That happened again Tuesday, when the Obama appointee issued a statement lamenting the “constitutional absurdity” of Jesus Herrera-Salazar’s double prosecution.

He had served time for being “found in” the U.S. after his removal and was told to stay in Oklahoma while on supervised release. But abiding by that instruction led to him being charged again for the same crime of being “found in” the country he was told to stay in. Joined by the Trump appointee, who has shown a libertarian streak in some cases, Sotomayor said that courts faced with this situation in the future should “avoid the constitutional absurdity that occurred here and give the Double Jeopardy Clause its full weight and meaning.”

Sotomayor and Gorsuch split in another case that gave the GOP its latest win on political advertising rates ahead of the midterms. Following a Republican win on the subject last month, over the lone dissent of Justice Ketanji Brown Jackson, Sotomayor and Jackson both noted their objections to Wednesday’s ruling in favor of the Federal Communications Commission. A lower court had ordered the agency to rule on Democrats’ challenge to the FCC’s GOP-friendly interpretation of the law on advertising rates.

But the Supreme Court majority put that lower court ruling on hold, effectively blessing what Sen. Jon Ossoff, D-Ga., and his fellow Democratic candidates called the Trump-backed agency’s “blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter.”

Meanwhile, John Eastman got some good news in his fight to keep his law license, after California authorities stripped it for misconduct while representing President Donald Trump and his 2020 campaign. Backed by an array of conservative groups, the former clerk to Justice Clarence Thomas said the court should take his case to “remove the threat” that the loss of his license “poses not just to the First Amendment but to the ability of attorneys fiercely to advocate for their clients without fear of politicized disbarment.”

Eastman’s good news came Thursday, when the court asked the state bar to respond to his petition. It only takes one justice to request a response, so we don’t know whether he will attract the required four justices to grant review (or how a majority of the court would rule on his case if it did grant review). Relatedly, we don’t know if Thomas, who previously recused himself from an Eastman-related case without explaining why, is participating in this one. If he’s not, that could hurt the petitioner’s chances. We should find out later this year whether Eastman’s bar fight will join the DOGE discovery dispute and other appeals this term.

The justices are off the bench until they return for their November hearing session. But the court will keep making news in the meantime, with the latest order list due Monday morning, plus whatever unscheduled emergency actions the court takes. Among the pending disputes the court can resolve anytime are the administration’s bid to enforce its ban on gender-affirming medical care for federal prisoners, as well as an urgent application from a high school wrestler and her mother seeking an injunction that would prevent her from wrestling transgender girls this upcoming season.

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“I know the President has the power to pardon, but can Congress pass a law that says a person must be convicted before they can be pardoned? Or a law that says they must apply for a pardon stating what criminal activity they engaged in before the President can use the pardon power, so everyone knows what crime(s) they committed?” — Bec J

Hi Bec,

I think the answer to both questions is “no.”

The pardon power is a vast constitutional authority belonging to the president.

To be sure, the power has limits. It applies to federal, not state, crimes. It applies to those offenses only after they occur; pardons aren’t permission slips to commit crimes in the future. Presidents also can’t pardon impeachments, so that is one area that the Constitution has carved out for Congress.

Beyond that, the Supreme Court has called the power “unlimited,” writing in an 1866 case that it “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”

Highlighting the limits of congressional authority in this area (outside of impeachment), the court said in that same case, “This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”

Against that backdrop, we can see why Congress is severely limited here.

Of course, it can impeach and remove the president for corruptly using his power. Even if a president could pardon themselves generally (a topic we explored last week), the impeachment exception to the pardon power means they wouldn’t be able to exempt themselves from those political proceedings.

With that background in mind, I think the courts would say that Congress can’t pass either of the two laws you suggest. I also think there are considerations to keep in mind that might caution against passing such laws even if Congress could, including the consideration of protecting the innocent from unjust prosecutions.

Start with whether Congress can pass a law that says “a person must be convicted before they can be pardoned.” That would run up against the court’s observation that the pardon power “may be exercised at any time after its commission” — even “before legal proceedings are taken.” That observation is supported by the plain constitutional text of the pardon power, which contains no conviction requirement.

There would be a similar problem with a law that says clemency hopefuls “must apply for a pardon stating what criminal activity they engaged in before the President can use the pardon power, so everyone knows what crime(s) they committed.”

Nothing in the Constitution says a person must apply for a pardon at all, much less that they need to describe their criminal activity in doing so. Such a law would therefore seem to interfere unduly with the president’s power. While presidents besides Donald Trump have relied on a standardized application process, whether they do so is up to them, not Congress.

Tying in the innocence point I flagged above, consider the following in thinking about both of these hypothetical laws: What if a president wants to right a wrong by pardoning someone who was unjustly prosecuted? We would not want such a person to have to confess to a crime they didn’t commit.

Or, what if there were an innocent person who hadn’t been charged with any crime, and an outgoing president was concerned that their successor was intent on railroading this innocent person? From Joe Biden’s perspective, that was the situation he faced when he preemptively pardoned Anthony Fauci and others he feared would be targeted by Trump’s second-term retribution campaign. Had those laws been in place at the time, Biden could not have issued that protective clemency.

Whatever one thinks of Biden’s or Trump’s pardons, if Congress is serious about reforming this massive presidential power, then it would need to advance a constitutional amendment to alter that power, which is firmly in the executive’s control until the Constitution says otherwise.

Ultimately, any of this would require a Congress that is willing to act. In the meantime, this discussion reinforces a point that I landed on when answering a prior question about pardons: “the best way — maybe the only real way — to combat the corrupt exercise of the pardon power is to not elect corrupt presidents.”

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