20th January 2021
Yesterday, on his last full day in office, President Donald Trump is reported as having issued seventy pardons, as well as having commuted seventy-three other sentences.
This in and of itself is not unusual: on his last day of office President Bill Clinton issued about twice as many pardons – including one for his brother.
Issuing a raft of pardons on one’s final day as president is now as established a tradition as the president pardoning a turkey on Thanksgiving.
Of the many things one should be annoyed or disappointed about Trump and his presidency, the mere fact of last-day questionable pardons is certainly not something unique to him.
Yet, Trump’s (actual and threatened) uses and abuses of pardons, and of his power to commute, do warrant further consideration, as they go to the heart of the relationship between the course of justice and the powers of the executive.
In essence: at what point do pardons cease to complement the justice system – showing mercy to those duly convicted – and become something else instead that undermines the justice system itself?
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To beg for a pardon is to plead for forgiveness.
It is just that the phrase ‘I beg your pardon’ is so familiar – it now means little more than ‘can you please repeat?’ or ‘what the Dickens have you just said or done?’ – that we overlook what the word ‘pardon’ actually means – or should mean.
And to forgive an act or omission requires certainty as to what that act or omission was – else how do you know what is being forgiven?
Accordingly a pardon should be as exact in its particulars as an indictment – almost a mirror image.
A person has been convicted of and sentenced for [x] – and so it is [x] that is being forgiven.
The conviction would – or should – still stand as a public and formal finding of criminal culpability – but the convicted person would be relieved from the burden of the sentence.
It would also be implicit that an acceptance of a pardon was an admission of criminal guilt – else how can one be forgiven for a wrong, if there was no wrong in the first place?
All this is what a pardon should be about, from first principle of it being an exercise of forgiveness.
(A commutation of a sentence raises a different issue as an exercise of mercy, and does not require any implicit admission of guilt.)
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But this is not what a presidential pardon is now understood to mean.
A presidential pardon is now, following President Gerald Ford’s pardon of President Richard Nixon for example, something that does not need to be exact in its particulars nor something that carries any implicit admission of guilt.
There does not even need to be a prosecution in place, or even envisaged.
A presidential pardon is now understood to be a ‘get out of jail, free’ card.
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The use of the ‘understood to be’ qualification above touches on another aspect of presidential pardons – they are rarely litigated and so have not (yet) been regulated by the courts or effectively by congress.
There is significant legal uncertainty as to the scope of pardons that depart from the classic model of exactness in respect of the punishment being forgiven.
The pardon for Nixon, for example, may be a political precedent but it is not a judicial precedent.
A pardon the scope of which Ford granted to Nixon may not survive judicial scrutiny.
(The way a pardon presumably would be litigated is when a prosecution appealed a defendant using a (purported) pardon as a bar on proceedings.)
This may explain why Trump did not announce a self-pardon nor Nixon-like pardons for his family and associates.
(There may also be other practical considerations, such being able to invoke the fifth amendment against self-incrimination, which would be difficult if you were protected from such incrimination.)
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But the lack of regulation and case law raises another non-trivial possibility.
There is a fascinating piece at CNN about ‘secret pardons’.
And it is correct that there is nothing on the face of the constitution that requires a pardon to be publicly announced when it is granted.
Trump has also not complied with other conventions when granting pardons, and so there is not inherent reason why he would not flout the convention that a pardon be publicly announced.
If this happened, the first we would ever know of such a pardon would be if and when it was raised by a defendant as a bar to proceedings.
By which time this presidential term of Trump will be long gone.
And what could be done?
Even impeaching Trump again (and again) would be pointless.
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As was once averred, power tends to corrupt and absolute power corrupts absolutely.
And so it is not surprising that it is in the two areas where an executive has, in effect, absolute power – the bestowal of honours and the granting of pardons – that there is corruption.
Those with political power will always tend to do what they can get away with, unless they are checked and balanced.
(The principle that for every power there is an equal and opposite check and balance is – or should be – the essence of constitutionalism.)
On the face of the constitution of the United States it would appear that the power to grant pardons is absolute.
Yet such an absolute power would make a nonsense of the careful separation of powers set out in the constitution generally, and of the express obligation of the president that he or she ‘shall take Care that the Laws be faithfully executed’ (Article II, section 3) in particular.
All because there has not yet been regulation of this power does not mean that a supreme court or congress may not one day set out the scope of the presidential power of pardon that accords with the constitution as a whole.
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If the word ‘pardon’ has drifted in meaning, so has the word ‘beg’.
It does not only mean ‘to plead’ – but also in the form ‘to beggar’ it can mean broadly ‘to reduce in value’: to ‘beggar belief’ is to say a thing is not worthy of belief, and to ‘beggar thy neighbour’ is to seek to aggrandise at the expense of a competitor.
In this way, Trump’s (actual and threatened) pardons – and other presidential pardons – can be seen as beggaring pardons.
But begging your pardon for that pun, there is now a compelling case for placing the power of presidential pardons on a basis so that they remain exercises of mercy to complement the course of justice, rather than undermining justice itself.
Such a congressional act or supreme court decision would be one good way for the presidency of Donald Trump to be remembered.
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This extraordinary power has become as dubious as the dispensing power did in Stuart England.
In addition to the issues with pardons that you set out clearly here, one that bugs me is the tradition of leaving them to the last day of a presidency.
If we accept that someone is genuinely deserving of a pardon, is it not in fact an act of cruelty to withhold that pardon for months and possibly years just to include it in the ‘final-day’ list?
Donald Trump has been issuing pardons throughout his presidency, such as pardoning Joe Arpaio for his contempt of court conviction in 2017.
Jimmy Carter took office in January 1977 and pardoned over 200,000 Vietnam War draft evaders that year.
Gerald Ford was president for just over two years and began his term in office by pardoning Richard Nixon. Over the next couple of years, he pardoned, commuted or reason did the convictions of a further 408 people, plus amnesty to over 50,000 Vietnam War draft evaders.
Yes, I understand that pardons (and commutations) happen all through a presidency, but for example:
– Clinton pardoned or commuted the sentences of 456 people over 8 years. Of these, 140 pardons were in his last day.
– Obama pardoned 212 people over 8 years, 64 of these were 2 days before the end of his second term.
– Trump pardoned 143 people over 4 years, around half on his last day.
https://en.wikipedia.org/wiki/List_of_people_pardoned_or_granted_clemency_by_the_president_of_the_United_States
Commutations on the last day make more sense as they often don’t have immediate effect.
Perhaps the intent is for presidents to use their last time with the great power that comes with their position as President of the United States of America for the purpose of mercy or clemency, righting a wrong with one of their final acts before leaving office.
If so, it’s a shame it is so often used to benefit acquaintances, friends, and relatives. This gives an impression of cronyism rather than a desire to genuinely, objectively, merciful with that power.
In the case of a secret pardon being used as a bar to prosecution, surely that only strictly applies in the case of a guilty verdict or plea? If an accused states they have a pardon, surely prosecutors could still press ahead with a trial if they felt the public record of a guilty verdict was still a worthwhile end.
I like this point:
“the principle that for every power there is an equal and opposite check and balance is – or should be – the essence of constitutionalism.”
And I wonder if that would be a key attacking point for any “secret pardons”, because the main limit of the pardon power is supposed to be the impeachment power. It’s important not to be fooled by the current slow train of the McConnell Senate, Congress could impeach in much less than a day if it wanted to.
If a pardon is “secret” there is no opportunity for its balance, which could be construed as suggesting it is improperly used.
Another balance, although open to conflict of laws, is for the application of State laws (although the recent Capitol insurrection shows the rather large hole of DC non-statehood).
Personally I hope that we will see the pardon power tested quite thoroughly in court in these coming years (despite some misgivings of sending anything through the current US court system).
I note you have steered clear, understandably, of rumours about the selling of pardons by people connected with President Trump.
There is no merit in speculation at this point.
One thing does strike me about that, though, is that when something similar actually occurred here, the selling of honours by Maundy Gregory, on behalf of David Lloyd George and his Liberal Party (and the Conservative Party), a major objection to the practice was not that it was done, but that it was put on a business like footing.
The practice was not new, but Gregory had a price list. A knighthood would cost you £10,000 back then and a baronetcy, £40,000.
Gregory, the scamp, sold honours even when he was no longer in a position to deliver the goods. Like any good con artist, he knew that no one could accuse him of taking their money under false pretences, because in doing so they would reveal they had been had and, because procuring an honour in such a way was illegal.
There would be a delicious irony if the master of the art of the deal had not adopted a business like approach to that of which Giuliani is being accused by the court of public opinion.
As an aside, are you planning a similar post concerning Trump’s killing spree on Federal Death Row? From what I am able to gather that is definitely unprecedented action by a President in recent times?
Surely there must come a point at which a purported pardon is so clearly corrupt that the courts would reject its validity? To take an extreme example, what would happen if a president engaged a hitman to murder one of his political rivals, and then immediately pardoned him for the crime? I can’t believe that even the most partisan of judges would accept this pardon as effective in protecting the hitman from criminal liability. (Obviously the president would bear criminal responsibility for ordering the murder as well, but that is a separate matter.)
The power of the executive to pardon people who have been convicted by the judiciary is odd. It’s even odder to pardon people before conviction. The process is clearly open to abuse, and it would be surprising if Trump didn’t abuse it. The fact that pardons seem to be sneaked out on the last day is a silent acknowledgment that the president will get political grief if the pardons were to be questioned, and therefore they are a “post-politics” action.
We do have the same thing here. The Crown can pardon convicted people. It does so via the government. (As an aside, I wonder if it does so as the UK government, and what the position is for pardoning in Scotland)
As there is never a “post-politics” time for a UK political party, there is less abuse here. If a UK government exercised its powers as capriciously as a US president, it would face huge press criticism and subsequent electoral pressure. Still, there is always time for the current government of mediocrities, dimwits, charlatans and compulsive liars to take a lead from the USA.
My recollection is that the last use of the royal pardon was very recent, and was applied to the chap who was out on licence while serving a life sentence and who very bravely tackled a terrorist at Fishmongers’ Hall on London Bridge.
More controversially, weren’t the convicted terrorists who were released as part of the Good Friday Agreement released under a Royal Pardon? Politics trumping the power of the courts.
Pardoning power ought to be used sparingly and carefully, and let us hope that continues to be the case here.
I would be interested in an article by David Allen Green on pardoning in the UK and other countries.
The royal prerogative of mercy is rarely exercised in the UK.
As I understand it, Steven Gallant had been convicted of murder, and sentenced to life with a minimum term of 17 years in 2005. In recognition of his role in tackling the London Bridge attacker in 2019, he was granted a partial remission of sentence to reduce the minimum tariff by 10 months and allow early release.
These parliamentary questions (a little old now) show how rarely that sort of thing happens.
* https://questions-statements.parliament.uk/written-questions/detail/2015-01-20/221302
* https://questions-statements.parliament.uk/written-questions/detail/2014-11-04/hl2637
In the 20 years to 2015, two full pardons and no remissions of sentence. It is a devolved matter in Scotland and Northern Ireland.
A tangential issue, but one that seems very important to me, is the ‘business’ aspect of pardons. I have read articles suggesting that intermediaries are charging large sums for the preparation of pardon requests, and justify these charges on the basis of their access to the President.
I take it, for now, that there is no question of the President or his immediate circle benefiting in this way. But if there are indeed ‘gatekeepers’ charging for access to the pardon process, is this just like barristers charging for their expertise in arguing cases before judges, or is it something much more corrupt, even sinister, beneath (and not very far beneath) the surface?
While guilt may be implicit in a pardon, there are other cases in which a miscarriage of justice condemned an innocent to prison (or worse).
The fact that there has even been doubt about whether Trump could grant himself a pardon or whether he could pardon his cronies and children ahead of any actual charges demonstrates the need for a Presidential (Federal) Pardons Act. (I wonder if governors have any equivalent powers for state crimes). The essence of the pardon power in my view should be its application where there is a strongly arguable case that there has been a miscarriage of justice or wholly disproportionate sentencing which for whatever reasons cannot be rectified within the judicial/legislative system within a reasonable timescale. So you would expect it to be fairly unusual and perhaps flag up the need for consideration of a change in the law or sentencing guidelines. In any event a pardon should not be considered to override guilt under the law as it stands.
As I understand it, the governors of some US states have the power to pardon; in others, pardons are dealt with by an agency, such as the parole board or a separate board of pardons.
Similarly, I understand that granting a pardon is predicated on the person being guilty in the first place (and accepting a pardon is taken as an acknowledgement of guilt).
Can anyone explain to me why there is a presidential right of pardon at all? I don’t really see how such a power can ever be used in a way that doesn’t undermine the rule of law: and if every use is an abuse, then what justifies its existence at all?
You refer to Gerald Ford’s TV address in justifying the pardon of President Nixon, and saying that Nixon’s resignation was “a tragedy in which we all have played a part. It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must.”
The Wikipedia entry refers to any crimes that might have been committed in particular Nixon’s actions in the Watergate scandal. Accepting that Nixon was not impeached and so was not tried in the Senate, was Ford not setting an awkward precedent in his actions?
The Wikipedia entry goes on to refer to Ford carrying around a 1915 Supreme Court Judgement as justification for his actions: Pardon carries imputation of guilt and acceptance carries a confession of guilt.
Ford did not stop the matter going on and on but only added fuel to the fire.
Ford suffered the political fallout in the 1976 election, which he lost by a whisker (50/48 to Carter in the popular vote, 55/45 in the electoral college). This may be one reason why so many presidential pardons are granted just before a president leaves office, and not during.
No doubt the legality and effect of any purported pardon is a matter for the courts to decide (so there is at least one check or balance) suggesting pardons should be regulated begs the question*, to what extent does the US Congress have the power to legislate to regulate or constrain the “Power” of the President under Article 2, section 2, clause 2 of the US Constitution Power to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”?
* In the modern sense of “raising the question”, not the proper sense which somehow by a circuitous route comes via Latin from the Greek for “assuming the conclusion”- https://languagelog.ldc.upenn.edu/nll/?p=2290
Whilst an interesting thought, it is difficult to imagine that a SCOTUS of anything like its current composition would be prepared to invent an implied Constitutional power to review a President’s pardons.
I think there is also a due process angle to this. If you, as a citizen, are given a pardon by the State are you not (absent perhaps actual fraud or corruption) entitled to rely on it and not face the prospect of needing to argue about its validity if the State changes its mind?
I wonder if Trump’s pardon of Bannon isn’t a poisoned pill. Bannon and co-defendents claim they are innocent of embezzling funds that were donated to “build that wall”. I believe that the trial has yet to get underway (so Bannon is still presumed to be innocent). Given that Trump has just pardonned him, he is declaring that his old mucker is (to coin a phrase) “as guilty as the man behind the grassy knoll”. Most of us would prefer not to have such friends!
If I may suggest so, it is no part of the business of the British to seek to interfere with the conduct of a foreign nation, a fortiori one that was created by rejecting Britain in the interest of retaining and advancing the privileges of its upper-middle-class.
“To beg for a pardon is to plead for forgiveness.”
Indeed and surely forgiveness must be predicated on repentance by the wrongdoer (or alleged wrongdoer) with a sincere vow not to pursue the wrongdoing. Otherwise “forgiveness” loses its true meaning and turns into waving a wand from on high, instead of honest examination of what is wrongfully done by one person to another. Thus the whole issue of presidential pardons strikes me as hollow.