Trump's pardons are troubling, but presidential pardon power is absolutely essential
From Roger Stone to Chelsea Manning to Thanksgiving turkeys, here's all you need to know about presidential pardons and executive clemency. USA TODAY
Barack Obama and Jimmy Carter made wise use of pardons. It is up to voters to choose presidents of character who won't abuse the power as Trump has.
President Donald Trump’s clemency is entirely the president’s decision, with no requirement to consult Congress or any other government agency. Clemency comes closest to fulfilling Trump’s view that he has “the right to do whatever I want as president."
This view aligns with a long line of judicial opinions which recognize that currently there are no legal constraints on the clemency power. Chief executives can grant clemency for “good reasons or bad, or for any reason at all,” as the Florida Supreme Court put it.
No wonder Trump refers to his clemency power as a “beautiful thing.”
Trump has not used the power of pardon excessively
Yet, despite his affection for it, Trump has used the pardon power sparingly. As of Nov. 25, he has pardoned, commuted or rescinded the conviction of only 45 individuals. This is the fewest of any president since William McKinley, who served from 1897 to 1901. President Barack Obama, by comparison, granted clemency 1,927 times during his two terms.
And when Trump has granted clemency, he has favored a rogue's gallery of people whose crimes convey contempt for the constraints imposed by the rule of law. This has been true from his first pardon, in August 2017, of Arizona’s notorious sheriff Joe Arpaio, who had defied a court order directing him to stop engaging in racial profiling, to last week’s pardon of Flynn, his former national security adviser who had pleaded guilty to lying to the FBI.
Trump's uses of the pardon power, however, are not the first time in recent memory that presidential grants of clemency caused an uproar, although his contempt for the rule of law may make him unique.
Earlier examples include Gerald Ford’s controversial 1974 pardon of Richard Nixon for any crimes arising from the Watergate scandal and George H.W. Bush's grant of clemency to former Defense Secretary Casper Weinberger for obstruction of justice in the so-called Iran-Contra scandal. Eight years later, President Bill Clinton stirred up controversy by pardoning financier Marc Rich on charges of tax evasion. Rich’s family had made substantial contributions to the Clinton library.
Calls for limits on the president’s clemency power have followed each of those scandals. But none succeeded in generating new legal limits.
Unconstitutional: calling on Congress to enact criminal penalties if pardons are granted for corrupt reasons, in the hope that “the legislature can prevent or deter the most egregious abuses.” Some are advocating a constitutional amendment which would require others to sign off on pardons and restrict when the power could be exercised.
Cycles of scandal and reform are very much part of American history. But for every pardon scandal there are countless examples of its wise use, like Obama’s record number of clemencies granted to correct the injustice of draconian drug sentences or Jimmy Carter’s 1977 pardon of Vietnam War era draft resisters in an effort to heal national divisions after the war’s end.
Voters are the check on pardon power
I am deeply troubled by Trump’s pardons and understand the desire for reform, yet I think the current proposals would do more harm than good.
The power to pardon without limit is both a dangerous and essential one. The framers of the Constitution understood that, but they believed that no system of government could or should rely solely on legal formula to achieve all that would be necessary in a good society.
Quid pro quo: an act of grace, proceeding from the power entrusted with the execution of the laws.” This grace, Marshall emphasized, is beyond the reach of legal compulsion or regulation and its proper use depends on the judgment and propriety of those who wield it. No set of laws can specify all the occasions which warrant grace and mercy.
In a society that too often looks to law to solve its problems, Marshall’s words are a salutary caution. They suggest that the remedy for Trump’s abuses of the pardon power rests with the people, not the legislatures or courts. It is up to voters to choose presidents of character and wisdom who will use the clemency power wisely to advance the causes of decency, democracy and compassion.
Austin Sarat is Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor Jurisprudence & Political Science at Amherst College and of "Mercy on Trial." Follow him on Twitter: @ljstprof