I said, Pardon?
By: Jack Macdonald
Tags: Politics, Society, President, Democracy, Election 2020

Photo by Tim Mossholder on Unsplash

I said, Pardon?

The presidential pardon is the strangest of executive powers. The idea of clemency is not strange, nor is it a bad idea. The president should have the power to make right an injustice. After all, the federal judicial system is not perfect either. There have been many people wrongly convicted, or convicted due to circumstances that are considered just in one era and unjust in another due to changing norms. The strange aspect of the presidential pardon that I am talking about is that it extends to something that may have happened. Wait, what? or, rather…pardon? That’s right, the executive power of clemency, including commutation and pardons, extends to something that maybe, just might have, happened at some point or during some period of time in the past.

So, while there is always a presumption of innocence until proven guilty, and the government must still find enough evidence and prove guilt beyond a reasonable doubt in order to achieve of conviction, the president need not wait until that process even begins. Long before the government even starts an investigation or has a whiff that something illegal has occurred, the president can pardon any individual for anything they might have done. Hmmm…. you say? A naive child might ask, “Why would someone need a pardon if they didn't do anything wrong?”

Back in 1974, Gerald Ford assumed the presidency from the disgraced President Richard Nixon after he resigned rather than face impeachment (imagine such personal accountability and respect for the office, alas) over his alleged involvement in the Watergate scandal. I say alleged because Nixon never did go to trial and it was never proven in court that he was guilty of any crime. This, in part, is due to the fact that one of Ford’s first acts as President was to pardon Nixon for anything he may have done while serving as President. ANYTHING! It’s no wonder it was considered scandalous at the time.

This week we learned that President Trump is considering a pardon for three of his children, and for his son-in-law Jared Kushner, and for his personal advocate Rudy Giuliani. It’s further known that Giuliani specifically asked for a pardon. The less naive person quickly comes to the conclusion that each of them knows that they’ve done wrong. Among all of their actions, supposedly on behalf of a government of the people by the people, they know that they each committed federal crimes. What does that tell you about the Trump administration, when those closest to him request the need for a pardon as they prepare to leave their White House jobs?

But that’s not the end of crazy. There is talk that Donald Trump may provide himself a pardon on his last day in office. It’s never been done. It’s never been constitutionally tested. Probably because it’s never been considered. An idea so self-regarding requires a certain level of narcissism to come up with the idea — and well, there is no higher level in that category than Donald Trump.

The executive power of clemency is broad enough as it is. He can practically pardon someone for any and all actions that may or may not have occurred and which may or may not ever be discovered, while working for his administration. As Churchill might have said: “Some sweeping, some rug!” Yes, to pardon all of the actions of all of the Trumps, Kushner and Giuliani, that is a lot of sweeping under a very large rug.

But it would pale in comparison to a “self-pardon” in the case of Donald Trump. He has continually and repeatedly asserted that he commits no wrong doing. From his activities with women who “let you do it” to the “perfect call” with the Ukrainian President, Trump’s actions are all above-board he has claimed. Investigations into Russian collusion (“there is no Russian collusion”) are dismissed as a hoax. Throughout the entire period of his presidency, he has not admitted to one mistake, one misstep, one transgression, not even one thing he would differently. Remember, on March 13, 2020, when asked directly about his responsibility for his administration’s preparedness for testing, he said he “takes no responsibility at all”. During a debate with Joe Biden, he momentarily seemed to take responsibility for his COVID-19 response, but then followed by saying “It’s not my fault.” So, if there is no culpability to any of his actions, if there is no responsibility to be assigned to himself, then for what purpose would a self-pardon be needed?

At least there are limits to ensure he cannot pardon himself or others for something they may do in future. That would be to offer a blank cheque on criminal activity. Maybe there is some merit to having some limitations on the executive powers of clemency.

But maybe we are just witnessing the final throes of the nightmare that is the Donald Trump experiment. With Trump pardoning his children, son-in-law, and personal lawyer, he is demonstrating the last act of nepotism that began even before day-one. Then after he signs his last executive order on January 19th, which will undoubtedly pardon himself, and if we listen very closely, we might hear a secret service agent lean over and say, “Pardon me, Mr. Trump, there is the exit door,” and show him the way out.