I think you would have to argue that there was no power to grant the pardon in the first place, so a court would then be deciding that the pardon never existed in the first place, rather than that it existed and then was voided by the court order.
One line I haven't seen argued yet is that the President can only exercise his powers after taking the oath of office (see for instance Obama retaking the oath, just to be sure, after Roberts effed it up at the inauguration), and therefore that the President's exercise of his power is subject to his complying with that oath as he exercises it. Any crimes committed by the President during his Presidency, or by any member of his administration while working for the administration, would contravene the Constitution, and so any pardon for those crimes would also contravene the Constitution. Because the President's powers are to be exercised for the purpose of upholding the Constitution, as set out in the oath of office, any such pardon would be outside those powers and invalid from the start.
An interesting thought exercise and would be great to see litigation attempt to resolve it if anyone had a few million sitting around and a lot of time to spend on it (plus could rope in someone with standing). But, I don't think that is consistent with current understanding. For instance, Ford's pardon of Nixon was quite broad, for all offesnes committed against the US. Of course, that would include anything he might have done that was unconstitutional. I wasn't alive at the time, much less had any legal training to hear how it was discussed, but I don't think people nowadays question that Ford's order was actually just limited to "statutory" offenses against the US or something like that.
So let's say that a sitting President, in his arrogance, accepted a direct bribe for a pardon. There's a wire to a personal offshore account, there are emails, and there are multiple witnesses, some of whom turned state's evidence.
Could the President pardon the briber and anyone else implicated in the crime? Is there any federal court that is able to charge the President? Or is he effectively immune due to a beguiled and beholden Senate?
He'd have to flee state charges, obviously, but Alabama or South Dakota might not extradite.
I honestly don't know (but assume many highly-paid lawyers are right now writing up briefs and memos on this exact subject) whether there are legal theories that would limit a president's ability to use a pardon if it was part of a larger, illegal scheme. I'm resisting googling this, and there might be some good theories and ideas out there already. But generally, if the president has a consitutional right to do something, a statute (i.e. making bribery illegal) cannot supersede that right, unless the constitution also grants power or leaves space (in some fashion) to explicate or limit or refine that right. So just the mere fact that he did something illegal doesn't mean that a particularl consitutional power was exercised illegally or incorrectly.
I think you would have to argue that there was no power to grant the pardon in the first place, so a court would then be deciding that the pardon never existed in the first place, rather than that it existed and then was voided by the court order.
One line I haven't seen argued yet is that the President can only exercise his powers after taking the oath of office (see for instance Obama retaking the oath, just to be sure, after Roberts effed it up at the inauguration), and therefore that the President's exercise of his power is subject to his complying with that oath as he exercises it. Any crimes committed by the President during his Presidency, or by any member of his administration while working for the administration, would contravene the Constitution, and so any pardon for those crimes would also contravene the Constitution. Because the President's powers are to be exercised for the purpose of upholding the Constitution, as set out in the oath of office, any such pardon would be outside those powers and invalid from the start.
An interesting thought exercise and would be great to see litigation attempt to resolve it if anyone had a few million sitting around and a lot of time to spend on it (plus could rope in someone with standing). But, I don't think that is consistent with current understanding. For instance, Ford's pardon of Nixon was quite broad, for all offesnes committed against the US. Of course, that would include anything he might have done that was unconstitutional. I wasn't alive at the time, much less had any legal training to hear how it was discussed, but I don't think people nowadays question that Ford's order was actually just limited to "statutory" offenses against the US or something like that.
Does the fact that something hasn't been argued before rule it out of being argued now? I don't think there was any litigation over the Nixon pardon so it doesn't form a legal precedent.
That's right. Just because a topic hasn't been litigated doesn't mean we know the answer. The fact that no one has litigated on something and, let's say, it's been ongoing for centuries and someone finally brings suit could be
persuasive to the court (particularly in the absence of other conclusive information from the law, the legislative history, etc), but not necessarily authoritative. The text of the law being sued on would trump whatever the practice has been, if it was an obvious conflict.
Would an argument based on the power of pardon being limited by the oath of office also apply to the Vice-President in that administration? So Pence couldn't become President and pardon Trump? That might become important.
I might be missing something about your hypothetical here? But if Pence became President, he would take the oath of office immediately. (Perhaps you've seen the pics of Johnson being sworn in with Jackie Kennedy, in her bloodstained dress, standing next to him, after JFK was assassinated). I don't think there'd be time, much less would Pence attempt, to pardon Trump before he had taken the oath.
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