Who Thought the Presidential Pardon Would Be a Good Idea?
By: Esther K.H. Ng
Tags: President Trump, History, American Politics, Justice, American History

Who Thought the Presidential Pardon Would Be a Good Idea?

Image by @bill_oxford on Unsplash.

As of 23rd December 2020, President Donald J. Trump (R-Florida) has granted pardons to 70 individuals and commuted the sentences of 22 more.

Of course, this in itself is not of great concern, given that Trump’s use of clemency power has been considerably infrequent compared to any other president in modern US history. In fact, Obama granted clemency 1927 times over his eight years in office, including 212 pardons and 1715 commutations.

What is worrying is that President Trump’s recipients of clemency also include many of the individuals convicted under special counsel Robert Mueller’s probe into Russian interference in the 2016 presidential election. For instance, Trump pardoned Roger Stone and Paul Manafort who had been convicted of impeding the investigations or proceedings.

He also pardoned Charles Kushner, who had been convicted for tax evasion, retaliating against a federal witness, and lying to the Federal Election Commission. Of course, we know that Charles Kushner is the father of Trump’s son-in-law and White House Advisor Jared Kushner.

Other individuals who have been pardoned also include Republican congressmen who misused campaign funds and the Blackwater guards that had been convicted for their involvement in the deaths of Iraqi civilians.

But what is the presidential pardon and how did presidents come to get this power?

Types of clemency

First, it may be helpful to explain some of the ways that the president or government can grant clemency to convicted persons.

A pardon completely sets aside the punishment one faces for a federal crime. On the other hand, commutations refer to the lessening of the penalty of one’s crimes — in many cases through a reduction of the imprisonment term one is slapped with.

The president can also grant remissions of fines or forfeitures imposed on an individual as part of their sentence. In addition, respites allow for the delaying of an ordered sentence (most commonly the death sentence) or the temporary imposition of a lesser sentence while further action is considered or taken.

Although there are indeed other forms of clemency measures, the ones most commonly used and discussed in the US are pardons and commutations.

The historical use of clemency powers

Many countries have the power to grant clemency to individuals. Most often, this power is vested in the president, monarch, or parole boards. Traditionally, it was also in the power of the monarch to pardon an individual for a crime.

In the US, it was at the 1787 Constitutional Convention that Alexander Hamilton proposed giving the President power to grant clemency. This power was valued for a few reasons.

First, clemency acts as a remedy against possible injustices or unduly harsh punishments ordered by judges in criminal proceedings. For example, at the height of the ‘war on drugs’, many Americans (disproportionately Black) were sentenced to excessively long prison sentences for relatively minor drug crimes. Many of Obama’s clemency grants served to commute their sentences.

Second, acts of clemency can go a long way in the efforts to “restore the tranquility of the commonwealth” after civil uprisings or rebellions. In essence, the thought is that punishing the ‘losers’ of the conflict would likely agitate their supporters, causing further societal upheaval in a time where peace is most needed. As such, George Washington pardoned the men responsible for the 1794 Whiskey Rebellion and Thomas Jefferson pardoned all individuals who had previously been convicted for defaming the government.

The pardon power’s limits in the US

Article II, Section 2 of the United States Constitution grants the President of the United States the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The US Constitution allows the President to grant clemency to those convicted of federal crimes. This means that the president cannot pardon those convicted of civil, state, or local offenses — though those convicted of crimes at the state level can be pardoned by the local governor or state pardon board.

A key limitation to the president’s clemency power is that a president cannot use a pardon to stop an impeachment or undo one already in effect. But beyond this, the US president’s pardon power is virtually unlimited.

The president has the power to pardon anyone at any time, as long as the crime is a federal one. Presidents have granted preemptive pardons — such as President Ford who granted Nixon an unconditional pardon even though he had yet to be formally charged with any crimes. Though recipients of pardons may choose to decline one, pardons once accepted and granted cannot be reversed (interestingly, George W. Bush successfully revoked a pardon once because the attorney had not yet signed the grant at the time).

It is generally agreed that presidents cannot pardon themselves. However, the courts have yet to grapple with this question in reality and legal experts have yet to form a consensus on the matter.

Why is the presidential pardon controversial?

For one, the presidential pardon is controversial as it may serve to override or undermine the judiciary, its proceedings, and decisions. Secondly, it also weakens the deterrence effect of punishment, especially for individuals who may have close ties to the president and/or are engaging in illegal activity under his direction.

A look at politics today makes it extremely clear why the President’s pardon power can be dangerous. Many of the individuals pardoned by President Trump have been close allies who supported him and allegedly lied for him during the Mueller investigation and impeachment trial. Might the assurance that the President will grant one clemency embolden an individual’s behavior?

Perhaps we may well recall that as far back as June 18, 1788, statesman George Mason had already aptly summarized the pardon’s potential for abuse. According to him, the President “ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”

Ultimately, the presidential power to pardon has primarily relied on the integrity and goodwill of the president in preventing its abuse. While many countries continue to exercise this power with great discretion and consideration, it seems that there is little in the way of things when it comes to presidents who are hell-bent on using this power to advance their own interests.