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?
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.)
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.
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.)
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.
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.
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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