Pardon Power, Abused

Literally, in the dead of night, in the waning hours of his presidency, President Donald Trump pardoned or commuted the sentences of 143 individuals. The pardons include such figures as Steve Bannon, his former campaign strategist, Elliott Broidy, a former fundraiser for the Republican National Committee, and Lil Wayne, the rapper.

Article II, Section Two, of the Constitution gives the president the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” As we heard from the Trump White House, the get-out-of-jail card is his to exercise as he sees fit. This is not a novel view of the president’s power and discretion. In 1866, the Supreme Court stated the authority extends to “every offence known to the law” and may be applied “at any time after [the crime’s] commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” Or, as Woodrow Wilson’s Attorney General A. Mitchell Palmer pointedly put it, The “President, in his action on pardon cases, is not subject to the control or supervision of anyone, nor is he accountable in any way to any branch of the government for his action.”

Is this really the case? At first glance, it certainly seems so. Although not every president has abused this power, it wasn’t that long ago that Bill Clinton, in his waning moments as President, granted 140 pardons and three dozen commutations—including pardons for his half-brother Roger over a drug conviction, two tax-evading fugitives, Pincus Green and Marc Rich, and Whitewater business partner Susan McDougal. None of these pardons could be justified as matters of high equity or national security, the two reasons the Constitution’s framers gave for providing the president with this prerogative.

Donald Trump’s pardons have been equally dubious—and certainly as expansive. Routinely ignoring the process through which the Justice Department reviews possible pardons, Trump’s pardons have included political buddies and aides, high-profile Trump supporters, his daughter’s father-in-law, corrupt politicians, and even individuals who have caught his attention because of some snippet of TV coverage that caught fire on social media among his base.

In theory, abuse of the pardon power should be an impeachable offense as a violation of the president’s Article II duty to “faithfully” execute the nation’s laws. But the standard for considering this abuse as an impeachable offense has narrowed to either the president granting a pardon in exchange for some concrete favor or a pardon designed to cover up the president’s complicity in a crime. Egregious use of this presidential prerogative has largely withered away the constitutional norm. Moreover, even the threat of impeachment begins to dissipate when a president is ending his days in office, although it must be admitted that President Trump probably shied away from preemptively pardoning himself and his immediate family out of concern that the action might lead more Republican Senators to lean toward an impeachment conviction this time around. But absent this particular circumstance, it’s doubtful anyone would challenge his use of the pardon power.

It’s still possible, of course, that a president could be indicted once he leaves office. However, as was seen in the federal investigation of Clinton’s pardon relating to Marc Rich and his wife’s donations to the Democratic Party and Clinton’s presidential library, connecting the dots sufficiently to put an ex-president on trial for corrupt actions while serving as president is a steep hill to climb legally and politically.

One fix to this problem would be a constitutional amendment that narrowed the ends for which presidential pardons could be issued. Putting aside just how difficult it is to amend the Constitution, the substantive issue would be coming up with language that would sufficiently define those ends but is not so restrictive as to undermine the purpose for the discretion itself. The pardon power is a prerogative power precisely because it is understood to be an authority that exists either independent of the law or in contravention of the law. The judgment necessary for acts of statesmanship is not easily bounded by definition. A case like President Gerald Ford’s pardon of former President Richard Nixon reveals just how difficult a line-drawing effort this would be.

The hope would be that future presidents might think twice about arbitrary use of the pardon power to avoid being seen as Trump-like. In the meantime, combined with his other problematic behavior, Trump’s abuse of the pardon power is just one more slice of the threads of the public’s civic trust in American governing institutions.

Gary J. Schmitt is resident scholar in strategic studies and American institutions at the American Enterprise Institute.