Time to Limit the Pardon Power

James Denseiow

The US President may be the most powerful individual on the planet, but they are not a king and what they can and can’t do is surrounded by the checks and balances of constitutional government. However, certain powers seem particularly unconstrained when used wildly and with a logic divorced from any argument as to the national good.

Predictions of President Trump’s pre-departure flurry of pardons have come true and now there is even talk of him pre-emptively pardoning himself and members of his own family. This dramatic covering of his own interests should trigger a reflection on the Presidential pardoning powers by the incoming Biden Administration.

All previous administrations have used the pardon power. Legal experts explain it is unlimited in scope and not subject to review for lawfulness by the courts. Many other countries in the world have similar powers granted to their head of state or royal leader and pardons often are granted on national days or ones of religious importance.

US history is littered with controversial examples of the use of this power. President Carter pardoned all those Americans who dodged the draft to fight in Vietnam, perhaps most controversially to date was President Ford pardoning President Nixon for any illegal acts committed during his presidency.

The logic of Presidents using the power more towards the end of their term is to avoid having to spend political capital on more contentious choices. Earlier this month President Trump pardoned his former campaign manager Paul Manafort, ex-adviser Roger Stone and the father of Mr Trump’s son-in-law. Observers point to how Manafort in particular, withheld full cooperation with the Muller inquiry into Russian involvement in the US 2016 election perhaps because Trump had frequently dangled the potential of the pardon that would eventually come. By contrast Trump’s former lawyer, Michael Cohen, who fully cooperated with the investigation did not receive a pardon.

Amongst the 29 pardons made over two moments towards the end of the year, Trump would spark global condemnation and controversy for pardoning four Blackwater military contractors who were involved in a 2007 massacre in Iraq. This particular pardon could almost be argued as a distraction taking the focus away from the more nefarious clearing of his own inner circle and those who’ve not disclosed information that could potentially be damaging to the President.

Where things could become the most toxic would be around the granting of pre-emptive pardons to the Trump family. The first point to make is that to have these pardons would be to admit guilt of a crime when currently whilst there may be investigations there are no charges. Whilst Trump’s pardon power covers federal charges, state level ones could remain a threat. Constitutional scholars argue that a President cannot pardon themselves, although that convention has never been tested.

Trump advocates could legitimately argue that at this stage none of these family pardons have actually happened and that this President has made less use of the pardon power than his predecessors so far. Trump, for example, has granted less than 100 pardons compared to a two term Obama President’s 212.

However, where critics are most concerned is around the absence of process surrounding how Trump is making decisions around this power. Rather than acting on advice from the Department of Justice (DOJ) he appears to be using the power in a more whimsical fashion with a particular focus on rewarding his own loyal allies that have fallen foul of the law.

CNN have reported that since Trump lost the election calls and emails have been flooding into the West Wing from people looking to benefit from the President’s powers of clemency. The Washington Post accused him of using the power as a political weapon. Analysts crunching the numbers around his use of the pardon so far reveal that 88% of those pardoned had a personal or political connection to him.

Whilst there is little that can be done to curtail the broad powers of pardoning that Trump is currently exercising, President Biden can choose to limit his own powers and commit to a process that wouldn’t allow a similar scenario to replay in the future. If ever there was a moment to reform the system it is now.

by :James Denselow