In the next few weeks, President Donald J. Trump, with his unerring instinct for provoking controversy, very likely will issue a flurry of pardons or commutations — to several of his onetime aides, perhaps to whistleblower Edward Snowden or lawyer Rudolph Giuliani, maybe even to members of his family and to himself. A blizzard of outrage will follow, just as it did when Gerald R. Ford pardoned Richard M. Nixon, when George H.W. Bush pardoned former defense secretary Caspar Weinberger and other Iran-Contra officials, when Bill Clinton pardoned financier Marc Rich, and when Barack Obama commuted the prison term of Army Sgt. Chelsea Manning.
The prospect of Trump issuing highly questionable pardons loomed larger this week with the announcement of the imminent departure of Attorney General William Barr, who during his tenure both enabled the president and restrained him — and who might have enlisted the Justice Department’s Office of the Pardon Attorney to push back against an extreme exercise of the pardon power in Trump’s last days in the White House.
All this cries out — not to end the power to pardon or commute but to reshape and reform it, to make it more a matter of merit and mercy and less a function of access and a rich target for abuse. And given the history of contentious pardons from both Republican and Democratic presidents, there might be a bipartisan solution, unlikely as that may sound. Although the two parties struggle to find consensus for economic relief in a once-in-a-century pandemic or an infrastructure bill that would allow Democratic and Republican lawmakers alike to flood their districts with federal spending, they might be able to agree that this is the time to overhaul the pardon process.
Here’s the conundrum: Presidential pardons and commutations — and their analogues issued by governors on the state level — are at once the most abused and most worthwhile intrusions by the executive branch on the judicial branch.
They have allowed presidents to wipe away the criminality of their allies, as Trump did when he commuted the sentence of his consigliere Roger Stone and pardoned his former national security adviser Michael Flynn, or even their family members, as Clinton did in pardoning his half-brother Roger Clinton.
But they also have permitted presidents to right historical wrongs, as Millard Fillmore did in 1854 when he heeded the entreaties of Massachusetts Senator Charles Sumner and pardoned two men seeking to transport enslaved people to freedom, and as Trump did by pardoning Susan B. Anthony, arrested for voting when women didn’t possess the franchise (though the executive director of the National Susan B. Anthony Museum and House has said the 19th-century women’s rights leader would have rejected the pardon, for she believed she did nothing wrong).
The power of mercy
The notion of pardons did not begin with the Founders’ decision to provide presidents, in Article II, Section 2, of the Constitution, the “power to grant reprieves and pardons for offenses against the United States.”
The Book of Isaiah (verse 55:7) speaks of a God who “will abundantly pardon.” And in the year 532, unrest against the Roman emperor Justinian grew during a controversy over whether he would pardon two rioters after a contentious chariot race. The English Parliament granted King Henry VIII absolute pardon power as early as 1535, and though that power gradually was curtailed, it was part of the legal landscape that the founders of the United States examined.
It was in that period that both the opportunities and dangers of the presidential pardon were revealed in all their glory and horror.
During the debate at the Virginia ratifying convention, George Mason of Virginia — one of three delegates to the Constitutional Convention who did not sign the document — argued that the president “ought not to have the powers of pardoning, because he may frequently pardon crimes which were advised by himself.” That’s precisely the worry that Trump’s critics have as the 45th president’s term draws to a close.
Even so, Alexander Hamilton, in Federalist Paper 74, defended the presidential pardon, arguing that it was created “out of humanity and good policy to permit mitigation from the rigor of the law” and thus should be restrained “as little as possible.”
In keeping with Hamilton’s perspective, “mercy has propelled most of the pardons issued by presidents in our history,” says John Yoo, a conservative legal theorist at the University of California, Berkeley, who was a prominent advocate of presidential prerogatives in the George W. Bush administration.
That’s the argument that Sumner used in support of Fillmore’s pardon for Capt. Daniel Drayton and Capt. Edward Sayres, the mariners who in 1848 sought to transport 77 slaves to freedom. It was also the argument that prompted Franklin Pierce, otherwise known for Southern sympathies despite his long career in New Hampshire politics, to pardon a free Black man, Noah Hanson, who hid two enslaved men owned by Representative William Colcock of South Carolina under a kitchen floor a month before the enactment of the Fugitive Slave Law in 1850.
“The power of pardon, which is attached by the Constitution to offenses generally, should not be curtailed,” Sumner said. “It is a generous prerogative, and should be exercised generously.”
And Scott Davidson, a philosophy professor at West Virginia University, argues that the pardon power helps cleanse the body politic. “It allows for a fresh start in which society can acknowledge the past transgressions of an outgoing administration,” he wrote on the academic website The Conversation, “but move on.”
Rooting out cronyism
In the past half century, every president has made at least one controversial or colorful pardon or commutation — Vietnam My Lai massacre commander Lt. William L. Calley Jr. (Nixon); “Tokyo Rose” World War II Japanese radio propagandist Iva Toguri D’Aquino (Ford); Peter, Paul and Mary folk singer Peter Yarrow (Jimmy Carter); New York Yankees principal owner George Steinbrenner (Ronald Reagan); Occidental Petroleum Co. executive Armand Hammer (George H.W. Bush); hostage-turned-bank-robber Patty Hearst (Clinton); Dick Cheney chief of staff I. Lewis “Scooter” Libby (George W. Bush); baseball Hall of Famer Willie McCovey (Obama); and British newspaper publisher Conrad Black (Trump).
And yet the presidential clemency power isn’t ultimately meant for the rich and the famous, or even for political figures such as former Boston Mayor and Representative James Michael Curley, pardoned by Harry Truman in 1950. Its value really is for the poor and the anonymous — those listed in the agate type of history rather than boldface. Indeed, Obama commuted more sentences than every other president since Calvin Coolidge combined, and you can examine the list of the 1,715 whose sentences were reduced — primarily for drug-related crimes, many of them administered under mandatory sentencing provisions now widely discredited — for page after page before you encounter an even remotely familiar name.
But it is the high-profile pardons and commutations that have raised questions about fairness and excess. And there is broad agreement that the presidential pardon power is not being employed in the 21st century in the fashion for which it was shaped in the 18th century.
“The biggest challenge today is that the pardon power is being abused in precisely the same way that so many other presidential powers and prerogatives are being abused,” says Jon D. Michaels, a UCLA School of Law expert on presidential power. “And the best, or at least most readily realized, remedy to such abuses is for the president and his team to commit to a more rational, depersonalized, and depoliticized approach to the granting of pardons.”
A Constitutional amendment to curtail the presidential pardon power is theoretically possible. Such an amendment could retain the president’s prerogative to issue pardons but grant veto power to Congress. Amending the Constitution is a balky process, though, requiring the approval of two-thirds of both houses of Congress and three-quarters of the states, which is why only 27 amendments have been approved.
More likely is that bipartisan support could emerge for reforms short of an amendment.
When President-elect Joe Biden sought to ameliorate tensions between the moderates he represented and the left-leaning progressives who backed Senator Bernie Sanders for the Democratic nomination, a committee reviewed the Democrats’ platform on criminal justice. In its report the committee praised Obama for commuting the sentences of hundreds of Americans “serving unjust sentences” and made it clear it supported “the continued use of the president’s clemency powers to secure the release of those serving unduly long sentences.”
But the committee also proposed establishing an independent board “to ensure an appropriate, effective process for using clemency, especially to address systemic racism and other priorities” — a notion that Republicans, facing at least four years out of the White House and thus without any voice in offering pardons or clemency, might conceivably embrace. Failing that, it is possible that Biden could proceed with that plan under an executive order.
“The Biden plan would make sure the power of the pardon was used more consistently and more justly,” says Daniel J. Urman, who teaches constitutional law at Northeastern University. “And the board could have formerly incarcerated people on it. That would increase its use for mercy. And hopefully decrease its use for cronyism.”
This issue surely will flare if Trump pardons family members and tries to pardon himself — yet another unprecedented presidential act. Trump has argued that he has the “absolute right” to pardon himself, though he also has said that there would be no reason to do so because “I have done nothing wrong.”
Ruling just days before Nixon resigned the presidency, the Justice Department’s Office of Legal Counsel said “it would seem” that a chief executive could not pardon himself. But that ruling is 46 years old, the word “seem” provides little deterrent, and Trump in the past four years has shown that he does not feel bound by precedent or legal opinions that conflict with his interests, inclinations, and impulses.
If, in his last days in office, the president issues multiple pardons to political cronies and political criminals, the backlash will change, and supercharge, the entire debate. “There are larger questions” at stake, says Michaels, the UCLA legal scholar, “such as do we want to cut off, or even severely constrain, opportunities for executive clemency, when such clemency may serve to remedy gross miscarriages of justice?”
After the Trump years, the country may face few more significant questions than the character of justice and how it is applied.
David Shribman, former Washington bureau chief for the Globe, is executive editor emeritus of the Pittsburgh Post-Gazette and scholar-in-residence at Carnegie Mellon University.