Christmas for Federal Criminals
By: George Dillard
Tags: History, Law, Politics, Trump, President

Christmas for Federal Criminals

Donald Trump has a special gift for some of his friends this year (public domain)

It’s pardon season, that time in our electoral calendar in which the outgoing President uses his power to immunize people from prosecution for crimes they may have committed. Donald Trump has already begun the festivities, pardoning former National Security Advisor Michael Flynn, who lied to the FBI during the Mueller investigation (Flynn later cooperated with the feds, only to flip again and accuse the FBI of framing him).

This is likely not the last pardon, as the President tries to ensure the loyalty of some of his partners in crime. There’s already a federal investigation into attempted bribery connected to a Presidential pardon. Trump associates are floating the possibility that he will pardon his children for unspecified crimes. Who knows — Trump may try to test the Constitution by pardoning himself on the way out the door. The Presidential pardon power has always been controversial. Its potential for corrupt use has been clear from the beginning of the republic. Over the years, it’s been used to free cronies of the President, those caught up in Presidential scandals, and even traitors against the nation.

A controversial power

Early leaders like George Mason saw the potential for abuse (public domain)

The pardon power was controversial from the beginning. At the end of a long sentence in Section 2 of Article 2 of the Constitution, the President is given the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Like much of the Constitution, the description of the pardon power is skeletal, which means that it was up to future generations of Presidents and courts to hash out what this sentence fragment means.

This little fragment of the Constitution seemed suspect to some from the very beginning. George Mason, one of the delegates to Virginia’s ratifying convention in 1789, said, “[the President] may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.… This is a weighty objection with me.” James Madison responded by reassuring Mason that a President who corruptly pardoned people would be impeached by Congress. Madison argued that a President would not be able to pardon people while under the shadow of an impeachment trial.

Madison’s confidence in the moral rectitude of Congress seems painfully naïve these days. Over the years, norms and legal rulings emerged around the pardon power. The courts have defined the pardon power quite broadly — they have decided that Congress cannot limit the President’s ability to make pardons, and that the President doesn’t have to wait for someone to be charged with a crime before he pardons them (the crime for which someone is being pardoned does have to be in the past — a President can’t pardon someone for all future crimes they may commit). In many ways, George Mason has been proven right — broad pardon powers in the hands of the President can lead to all sorts of questionable decisions that have damaged public confidence in the government and undermined the rule of law.

Clinton’s last-minute pardons

Bill Clinton’s half-brother (and pardonee) Roger (CC 2.0)

One category of questionable Presidential pardon has been the pardon of the President’s cronies. Whether connected by family ties or by big money, they get the attention of an outgoing President and secure their freedom. Two of Bill Clinton’s last-minute pardons fit this mold. At the end of eight scandal-ridden years, Clinton issued 140 pardons on the morning of January 20, 2001, using his last hours in office to help a number of people wipe their records clean.

Clinton issued a pardon to Susan McDougal, who was one of the protagonists of the Whitewater scandal, which had cast a shadow on much of Clinton’s time in office and led to his impeachment. Members of the Presidential family got involved, as well. Clinton pardoned his brother Roger for an old cocaine offense (he had long since served his time in jail), and Hugh Rodham, Hillary Clinton’s brother, was found to have accepted hundreds of thousands of dollars to obtain pardons for several wealthy businesspeople (Rodham later returned the money). Another of Hillary’s brothers, Tony Rodham, urged clemency for two other businesspeople from whom he had received over $300,000 (Rodham claimed that the money was unconnected to his lobbying for a pardon).

The most famous of Clinton’s last-minute pardons was for Marc Rich, a wealthy financier with many questionable connections who had fled to Switzerland after being indicted for tax evasion and racketeering. Rich’s wife had donated hundreds of thousands of dollars to Clinton’s library, the Democratic Party, and Hillary Clinton’s Senate campaign. Bill Clinton clearly understood that these pardons looked bad, and he seemed to hope that issuing them just before the inauguration would render them less visible to the public.

Clinton was wrong — some of his last-minute pardons were denounced by Democratic leaders like Jimmy Carter, and his public image took a serious hit. Clinton’s approval rating after he left office fell as low as it had been at the depths of his worst Presidential scandals. The pardons provided ample fodder for Republicans, who spend the next 20 years painting a picture of the Clintons as an unethical family who made sure to help their connected and powerful friends. This image dogged Hillary Clinton’s Senate and Presidential campaigns.

Scandals and cover-ups

Gerald Ford announces his pardon of Richard Nixon to the nation (public domain)

Some Presidents have gone beyond simply pardoning their wealthy friends; they have also used the pardon power to protect their political allies who may have committed crimes in office. The most famous of these is the pardon of Richard Nixon a month after he had resigned as President. Though his resignation allowed him to avoid impeachment, Nixon faced a real possibility of being charged and convicted of a crime. Ford, who was the only President to never have been elected either President to Vice President (he was appointed after Nixon’s previous Vice President, Spiro Agnew, had resigned in disgrace after a corruption scandal), almost immediately spent much of his political capital on pardoning his former boss.

Though Ford justified the pardon by saying that the country had had enough of “an American tragedy,” his action was controversial, to say the least. Many Americans alleged that Ford had struck a corrupt bargain with Nixon, persuading him to resign in exchange for a pardon. The Republicans lost dozens of seats in the 1974 Congressional elections, and Ford lost his election two years later to Jimmy Carter, with his pardon of Nixon one of the major issues of the campaign.

Ford’s pardon of Nixon was not the only time a Republican President let members of his own party off the hook for potential crimes committed in office. On Christmas Eve, 1992, George H. W. Bush pardoned six members of the Reagan administration — including Defense Secretary Caspar Weinberger — for their roles in the Iran-Contra scandal. This was even more ethically questionable than Ford’s pardon of Nixon because Bush had been widely implicated in the scandal — even though he claimed to have been “out of the loop,” he had admitted in his diaries that he “knew fully the details” of the scheme to break the law by selling arms to Iran and fund the Contras in Nicaragua. Though Bush excused the actions of the Iran-Contra felons by saying that they were motivated by “patriotism” to commit their crimes, Independent Counsel Lawrence Walsh summed it up differently, saying:

“[The] pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence. Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens…. The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger.”

Forgiving traitors

Whiskey rebels tar and feather a tax collector (public domain)

A final category of controversial pardons went to those who betrayed the United States in a rebellion. In the first use of the pardon power, George Washington let participants in the Whiskey Rebellion off the hook. In 1791, alcohol producers, angered by a steep federal tax on spirits, led an armed rebellion in several states. Washington deployed 13,000 soldiers against the rebels, and some of them were convicted of treason and sentenced to hang. Though Alexander Hamilton — who had championed the tax and saw the rebellion as a danger to the young country — wanted vengeance on the rebels, Washington defended his actions by saying that:

The misled have abandoned their errors, and pay the respect to our Constitution and laws which is due from good citizens to the public authorities of the society.… it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.

More controversial than Washington’s act or forgiveness was Andrew Johnson’s pardon of former Confederate leaders. Before his assassination, Abraham Lincoln had discussed giving ordinary Confederates amnesty and had pardoned a few dozen prominent rebels. Soon after Lincoln’s death, Johnson issued a blanket pardon for all Confederates who had less than $20,000 in property. This ensured that wealthy southerners would beseech Johnson for clemency, often employing high-priced “pardon brokers” who were connected to the administration, which opened the door to corruption (high officials in the Confederacy like Jefferson Davis were not eligible for pardons under the terms of the end of the war).

Within a few months, the planter class in the south was free to run in elections, reasserting their power over African-Americans through the infamous Black Codes. Johnson’s pardons — part of a larger pattern of sympathy with racist southerners — helped to lead to his impeachment in 1868. During his lame-duck period, on Christmas Day, 1868, Johnson played Santa one last time— he issued a blanket pardon for all the Confederates he had failed to exonerate. Johnson’s eagerness to forgive Confederates is one of the reasons he is widely considered one of the worst Presidents in American history.

Donald Trump, should he go through with the plans that he has mooted, would join the shameful list of Presidents who have unwisely used the pardon power. He may even break some new ground — nobody has yet pardoned their own children! But Trump should be aware that when Presidents use pardons to help their cronies, sweep abuses of power under the rug, or help those who turned against the country, they are rarely judged favorably.