Trump’s Pardons Are the Most Corrupt of Any President
Pardons have been controversial from the beginning. But in the last few decades, presidents have used them for political and personal gains, making them a sick joke on democracy.
Article II, Section 2 of the US Constitution gives the president the power to grant “Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The only limitation on this power is that it only applies to federal crimes, not state crimes. Because of this, Trump wasn’t able to pardon former senior advisor Steve Bannon for state level fraud charges in his We Build the Wall Campaign, yet he was allowed to pardon ally Roger Stone for lying to Congress and six other felony charges.
It’s arguable if the president can pardon himself. It’s a constitutional grey area, and a judicial precedent has yet to be set, as no president has had the gall to try it. Though, if there every was a president that would try it, Trump would have been the one.
Given the trend in the last few decades, abuse of the presidential pardon is only going to get worse, unless something changes.
Controversial From the Beginning
The Founding Fathers, quite paradoxically, modeled the presidential pardon after the royal prerogative of mercy, an old English law that allows the monarch to overturn death sentences or other harsh punishments. Of course, numerous state delegates to the Constitutional Convention of 1787 insisted that this provision was antithetical to the very point of the country. They reasoned that a president that has this much power is essentially installing a new king, which they had just fought to escape.
However, the majority sided with Alexander Hamilton, who claimed in Federalist №74 that “one man appears to be a more eligible dispenser of the mercy of government, than a body of men.” He reasoned that in times of trouble, the government would need to step in and quickly diffuse the situation. If the power of the pardon was given to Congress or the Supreme Court, then they wouldn’t happen quickly enough or maybe not at all due to political infighting.
For example, George Washington pardoned Philip Vigol and John Mitchel for treason for their roles in the 1791–1794 Whiskey Rebellion. Washington was forced to do so to quell an uneasy population, which was likely to spawn a new rebellion. Likewise, Andrew Johnson pardoned the entire Confederacy after the Civil War. During the Era of Reconstruction, the country was trying to mend itself and to function again as a coherent entity. This would not have been possible if the leaders of the states that rebelled were being tried for treason. So with these examples and many others in mind, it seems Hamilton has a good point.
However, delegates like George Mason, the state delegate from Pennsylvania to the Constitutional Convention of 1787, disagreed. He refused to sign the Constitution, saying that “If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?” Here, Mason is saying that the president can use pardons to protect himself and those around him. “I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.” Despite his objections, Hamilton won, and the presidential pardon was enshrined in Article II, Section 2 of the US Constitution.
It wasn’t until 1866 that the presidential pardons were again called into question in the Supreme Court case Ex parte Garland. In the aftermath of the Civil War, ex-Confederates were trying to reenter their professions. Garland, a senator from Arkansas, wanted to return to practicing law. In 1865, Congress required all officers of the court to swear an oath that they had never taken up arms against the United States, which he was guilty of as a member of a rebellious state. He was also given a pardon by Andrew Johnson, absolving him of his crimes. So the question at hand is which one held more weight. The Supreme Court ruled that “when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.” This ruling elevated presidential pardons above all other acts and decisions of the federal government, besides impeachment.
Depravity From Nixon to Trump
Most presidents have used their pardoning powers in controversial ways, but beginning with Nixon they became far more political and personal. For example, Nixon pardoned Jimmy Hoffa who was the president of the International Brotherhood of Teamsters (IBT) and convicted of tax evasion in 1964. Hoffa was a Nixon supporter and major donor. Some assert the pardon was part of a deal to make Nixon seem like union supporter in his reelection campaign and a ploy by acting IBT president Fitzsimmons to stay in power.
In August 1974, Nixon resigned as part of a deal with Gerald Ford, the Vice President and soon to be president, to be pardoned for crimes in the Watergate scandal. Ford gave Nixon blanket immunity for the crimes he committed during his presidency. Therefore, Nixon used the presidential pardon for his personal and political gains, exactly what George Mason and other critics feared. Though, subsequent presidents were not any better.
Reagan pardoned George Steinbrenner in 1989 for 14 counts of illegal financial contributions to Nixon’s reelection campaign in 1971. Reagan also pardoned Mark Felt, one of the lead conspirators in the Watergate scandal.
Near the end of his presidency, Bush Sr. pardoned Caspar Weinberger and 5 others of crimes committed during the Iran-Contra scandal. Weinberger was the defense secretary under Reagan, when Bush Sr. was vice president, and was found guilty of secretly selling arms to Iran, violating an embargo, and funneling the funds to the Contras, a rebel group in Nicaragua. He also pardoned Armand Hammer for violating campaign finance laws when contributing to Nixon’s campaign. Hammer had just contributed $100,000 to the Republican party before he was pardoned.
Bill Clinton pardoned his half-brother Roger Clinton after he served a year for a cocaine charge. He also pardoned Marc Rich for 51 counts of tax fraud after his wife made large donations to the Clinton library and Hillary Clinton’s Senate campaign.
George W. Bush pardoned Scooter Libby for perjury. Libby was Bush’s assistant and Vice President Dick Cheney’s Chief of Staff.
Trump’s pardons take the cake. He pardoned Paul Manafort for his 10 year long scheme of financial fraud in the former Soviet Union. Manafort was Trump’s former campaign manager and long time supporter. He pardoned Roger Stone for lying to Congress, threatening a witness, among several other charges. Stone was a long time supporter, friend, and advisor to Trump. Trump pardoned Charles Kushner for his crimes of tax evasion and illegal campaign donations. It was also discovered that he tried to trap his brother-in-law in a scheme with a prostitute, which Chris Christie called “one of the most loathsome, disgusting crimes” he ever prosecuted. Kushner is the father his son-in-law Jared Kushner. He also pardoned Michael Flynn for lying to the FBI twice. Flynn was Trump’s former national security adviser.
Quite disturbingly, Trump pardoned Paul Slough, Evan Liberty, Nicholas Slatton, and Dustin Heard for massacring Iraqi civilians. Why? Because they were employees of private security company Blackwater, which is owned by Erik Prince, who is the sister of Betsy DeVos, who is Trump’s Secretary of Education.
The list continues: George Papadopoulos, Alex van der Zwaan, Duncan Hunter, Chris Collins, Steve Stockman, Joe Arpaio, Conrad Black, Rod Blagojevich, Dinesh D’Souza, Edward DeBartolo, Dwight and Steven Hammond, Angela Stanton, Paul Pogue, Paul Erickson, Robin Hayes, Kwame Kilpatrick, William Walters, Aviem Sella, Bob Zangrillo, among many, many others. Steve Bannon was pardoned for his federal crimes, although New York State will inevitably go after him. All of these people have either professed their support for Trump, are prominent conservatives, closely connected to Trump, or donated money to his campaign.
It’s true that other presidents have issued less pardons than Trump, but non have pardoned so many for clearly personal or political gains. In fact, the Department of Justice is investigating a possible pay-for-pardon scheme in Trump’s White House.
With the above in mind, it’s clear we’ve gone awry from Hamilton’s original justification of the presidential pardon being necessary to intervene in uneasy times. Instead, we’ve realized George Mason’s deepest fears.
Clipping the Wings of the President
So, what’s the solution? One idea is to elevate the role of the Office of the Pardon Attorney. Part of the Department of Justice, it’s role is to merely assist the president when making pardons. Instead, a pardon should require the consent of the Pardon Attorney. Even better, the Attorney General should have to sign on as well. Even though both positions are under the president’s purview and subject to his or her will, this idea would curb the president’s capriciousness and corruption.
Another idea is that a pardon should need the consent of the Speaker of the House, the Senate Majority Leader, or the Chief Justice of the Supreme Court. Having other branches of government involved would bring the decision under far more scrutiny, yet still preserve Hamilton’s need for quickness.
The president’s power has expanded dramatically, largely due to the Unitary Executive Theory, which holds that he or she alone decides what happens under the executive branch. The other branches of government have little influence, and the growth of the executive branch has made the president more powerful than was original intended.
It’s about time the president’s wings are clipped, starting with curbing unilateral pardons.
Originally published at http://thehappyneuron.com on January 4, 2021.