Can Pardon Power Change?
By: Terry Schwadron
Tags: Power, Joe Biden, Pardon, President

Terry H. Schwadron

Dec. 26, 2020

We know that the Constitution gives presidents nearly unlimited powers to offer clemency and pardons, as a tool to blunt harsh sentences that sometimes emerge from prosecutions.

As demonstrated in the 50 pardons of the last week, we also know that Donald Trump’s version of using pardons to allow family, friends and political allies — and maybe himself — off the hook for federal crimes is abusive and a reflection of personal, partisan politics to an amazing degree. Even by comparison with excessive individual pardons from Bill Clinton and the Bushes, Trump has set a new low for using the pardon power for his own gain. Some pardons, as that for Charles Kushner, are simply incomprehensible; they defy American values, as well as crowning anew regal powers to an elected, temporal custodian of the Oval Office.

There appears to be no abridgment of law, no excessive punishment, no change of heart about what we say as a society that we want to prosecute. We want fraud punished, as well as illegal use of money by public officials, as well as murder of civilians. We don’t want pardons used towards rewarding political friends.

That Trump’s pardon actions are disheartening is clear. Even Republican Sen. Ben Sasse of Nebraska has been willing to stand up to call it “rotten to the core” for Trump to dismiss charges against those prosecuted as part of the Mueller investigation, three congressmen who used illegal money for personal gain, contractors who murdered Iraqi civilians and the criminal slumlord who is his daughter’s father-in-law.

But this abuse of office has been a logical outgrowth of Republican leadership in Congress looking the other way at Trump’s performance in office and shielding him from impeachment and oversight.

The point is, we have known for months what was coming, and now that it is here, it is upsetting all over again.

How Bad?

Ruth Marcus argues in The Washington Post that “No president has ever misused the pardon power as thoroughly as Trump has — not to rectify wrongs and dispense mercy but to reward political allies, excuse corruption and erase, as completely as possible, the work of the special counsel who plagued his years in office.”

An article in the Daily Kos provides a fresh angle on all of this, kicking off additional thinking: It argues that Trump’s latest pardons are moves to corrupt laws that he stands accused of breaking himself.

The article argues that there are “no non-corrupt justifications for Donald Trump’s latest batch of pardons. None. There’s no nuance to them” other than being straight political gifts meant to reward loyalty or to further insulate Trump from attacks.

Robert Goodman, New York University School of Law professor, told CNN on Thursday that Trump’s pardons could open him up to new criminal prosecution for obstruction of justice — if they are construed as a payment in return for non-cooperation with special counsel Robert S. Mueller III’s investigation of all-things-Russia. The final report said outright that communications between Trump’s lawyers and those for Paul Manafort for non-cooperation in return for a pardon would be obstruction of justice. Now, we have that pardon in hand — and a record of non-cooperation on the part of Manafort. Hmmm indeed.

The Daily Kos outline is different. It argues that by clearing George Papadopoulos, the Trump campaign adviser who bragged to an alarmed Australian official that Russia was offering help to the campaign, and then lied to investigators, Trump actually is seeking to undercut all federal prosecutions about lying. This president certainly has such a public record, and may have lied to Mueller’s written questions to him.

In other words, Trump is not only immunizing himself from future testimony as well as rewriting history, he is attacking the power of the law itself.

In clearing charges from the convicted Republican congress members, all three of whom used taxpayer or campaign finance money for their own personal use, Trump is laying the grounds for similar charges against himself. Trump likely violated campaign laws to hide affairs, a crime to which his former lawyer Michael Cohen pled guilty , implicating Trump as “Candidate 1.” Trump and family are accused of misusing donated inauguration funds, just as Trump is now known to have pocketed funds from his self-named charity.

Abusing the Military

In the case of pardoning killers of Iraqi civilians, Trump not only is helping political allies — Erik Prince, head of the Blackwater contracting group that employed the former military members involved is the brother of Education Secretary Betsy DeVos — but addressing the idea that the White House can do whatever it wants militarily. That may well cover using military troops to tear-gas crowds outside the White House to allow for a photo op stunt holding a Bible, for example, or misusing military funds for Wall building on the border.

“It will get worse,” warns Daily Kos. Trump “will almost certainly pardon his family, a blanket pardon that does not recognize the charges of Russian cooperation but which nonetheless immunizes all involved from that investigation and from every financial crime, real or suspected, any ever engaged in. He will include himself. He may yet issue more pardons directed specifically at the violent far right, pardons aimed at encouraging actual terrorism on his behalf.”

Inevitably, all this raises the question of revisiting presidential pardon power. After all, recent disclosure in a federal court case of heavily redacted documents outlining how a pay-for-pardon scheme might work underscored how the system can be ripe for corruption. The White House has denied any connection to that matter, but the potential is there.

In the platform this year, Democrats called for the establishment of an independent clemency board with members from outside the Justice Department who would make recommendations directly to the president. Congress has limited power to force an administration’s hand on clemency, absent a constitutional amendment.

One issue involved the secrecy of the current parole review in the Justice Department, but in the end, these pardons are dependent on the morality sought by the president.

Add pardon re-thinking to Joe Biden’s already too-long list of things that need to be addressed.

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