I am a bit surprised that this hasn't been asked yet, but it seems indeed that it has not.

A few days ago, CNN reported:

President Donald Trump told Customs and Border Protection Commissioner Kevin McAleenan he would grant McAleenan a pardon if he were sent to jail for having border agents block asylum seekers from entering the US in defiance of US law, senior administration officials tell CNN.

Trump reportedly made the comment during a visit to the border at Calexico, California, a week ago. It was not clear if the comment was a joke.

Two officials briefed on the exchange say the President told McAleenan, since named the acting secretary of the Department of Homeland Security, that he "would pardon him if he ever went to jail for denying US entry to migrants," as one of the officials paraphrased.

(I am not certain that CNN first broke this news, but the Guardian has attributed it to them, so I've gone along with that.)

I am not interested here in the political implications. I would like to know, hypothetically, whether it would be possible for a cabinet secretary to be jailed for the misapplication of federal law in the performance of his or her duties, and, if so, under what circumstances. More precisely, I would like to know whether criminal liability could arise, or personal civil liability (I understand that a presidential pardon would have no effect on civil liability).

I hope answers will also address any existing protections with respect to civil or criminal liability (or both). For example, I am familiar with "qualified immunity" in civil rights actions against law enforcement officers, but not in other contexts. Would qualified immunity apply here? Would it apply to criminal liability as well as civil? If not, are there other forms of immunity or other protections that do apply?

1 Answer 1


No, federal officials are not immune from criminal laws. Obviously, many politicians have been arrested. https://en.wikipedia.org/wiki/List_of_American_federal_politicians_convicted_of_crimes#Executive_branch_2

What is a criminal offense for them is the same as the list of criminal offenses for everyone though. Just because something is against the law does not make it a criminal offense. What criminal law would be broken in that situation?

If a government official is obligated to do something and won't, mandamus is the legal doctrine the court can use to force them to act. It's uses are limited to when there aren't other remedies though. https://www.law.cornell.edu/wex/mandamus

In the case you mentioned of Trump, I think he meant that if the courts ordered McAleenan to enforce the law and McAleenan still did not, the court may hold him in contempt. Trump would then pardon him. I don't think Trump meant McAleenan was going to commit a federal crime.

  • Of course federal officials are not generally immune from criminal laws. But is there a federal law that creates a criminal offense of misapplying a statute? If a federal court held a secretary in contempt for failing to comply with a court order, would that be criminal contempt or civil contempt? In the latter case, would the power to pardon apply, or would the president be able to circumvent the order in some other way, perhaps by simply refusing to take the person into custody or to enforce any financial penalty?
    – phoog
    Apr 16, 2019 at 19:53
  • 1
    It would be criminal contempt, because the court would be taking action to punish him for not complying, if it happened. Generally pardons are not for civil contempt. If there was a civil financial penalty it would stand.
    – Putvi
    Apr 16, 2019 at 20:02
  • The exact details would depend on what happened, but generally what it is saying is Trump would not let him be held for refusing to comply if the ordered it.
    – Putvi
    Apr 16, 2019 at 20:03
  • @phoog can you accept my answer please?
    – Putvi
    Apr 17, 2019 at 16:20
  • The President can probably pardon a criminal contempt conviction, but cannot pardon a civil contempt sanction.
    – ohwilleke
    Feb 11, 2020 at 1:12

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