If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation.
.. But if the president can immunize his agents in this manner, the courts will effectively lose any meaningful authority to protect constitutional rights against invasion by the executive branch. This is surely not the result contemplated by those who drafted and ratified the Fifth Amendment, and surely not the result dictated by precepts of constitutional democracy. All that would remain to the courts by way of enforcement would be the possibility of civil damage awards, hardly an effective means of stopping or deterring invasions of the right to liberty.
.. It has long been recognized that the greatest threat of tyranny derives from the executive branch, where the commander in chief sits, overseeing not just the military but a vast and growing network of law enforcement and regulatory agencies. Indeed, the Articles of Confederation didn’t even provide for an executive, for fear of what dangerous power he might exercise.
.. The Fifth Amendment’s guarantee of neutral judicial process before deprivation of liberty cannot function with a weaponized pardon power that enables President Trump, or any president, to circumvent judicial protections of constitutional rights.