Analysis & Comment

Opinion | Trump Corrupted the Presidential Pardon. Biden Must Repair It.

President Trump doesn’t use his pardon power often, but when he does, he abuses the process for all it’s worth.

In less than four years in office, Mr. Trump has made a mockery of mercy, doling out clemency to some of the most deplorable people in the country while ignoring tens of thousands of more deserving applicants.

He did it again Tuesday night, issuing 20 pardons and sentence commutations, many to a rogues’ gallery of wrongdoers who shouldn’t have been on anyone’s mercy list. These included four Blackwater security guards convicted in connection with the killing of Iraqi civilians, three corrupt Republican former members of Congress and two figures who pleaded guilty as part of the special counsel’s Russia investigation.

Sure, Mr. Trump tossed a bone to a few people sentenced under outrageously harsh three-strikes laws, like Weldon Angelos, who got 55 years in prison for selling marijuana while carrying a handgun. But those are the exceptions. In general, if you are not a xenophobic sheriff, a right-wing troll, a homicidal military officer, an old friend or a turkey, your odds of being pardoned by this president hover around zero.

What makes Mr. Trump’s clemency record even worse is how paltry it is. As the old joke goes, the food is terrible, and the portions are too small. To date, Mr. Trump has issued a not-so-grand total of 65 pardons and sentence commutations — fewer in more than 100 years than any other president who didn’t die or get assassinated soon after taking office. He may yet add a few to that list, if only by pre-emptively pardoning his lawyers and family members.

Mr. Trump’s stingy, self-serving approach to clemency is due in part to his transactional view of the law as something to punish his enemies and to protect himself, his friends and his allies. But it’s a power that is easy to abuse because it is nearly unlimited. While Mr. Trump may be the most flagrant abuser, he’s far from the first. From Bill Clinton’s pardon of the fugitive financier Marc Rich to Gerald Ford’s pardon of his predecessor Richard Nixon, there are plenty of examples in recent years alone of presidents of both parties exploiting mercy for dubious reasons.

The solution isn’t for presidents to pardon fewer people; it’s to pardon more, with more consideration and more consistency.

As President-elect Joe Biden prepares to take over, he has the opportunity to reimagine this deeply important but long-abused power and make it work more as the founders intended: as a counterweight to unjust prosecutions and excessive punishments. “Without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel,” Alexander Hamilton wrote in the Federalist No. 74.

If ever there was a moment to reform the system, it is now. The decades-old American prison crisis has dumped millions of people behind bars, many suffering under hugely disproportionate sentences. Last summer, the nation was engulfed by mass protests over criminal-justice abuses, and prisons continue to endure many of the nation’s worst coronavirus outbreaks. Recent federal laws, including one signed by Mr. Trump, have alleviated some of the most egregious sentences, but they haven’t done nearly enough. There are currently nearly 14,000 clemency petitions waiting for action. And unlike so many other parts of the federal government, clemency is one area in which presidents can do a lot of good on their own, and fast.

The first and most important step: Take back control of the pardon process. The power to grant mercy may be the president’s alone, but the office of the pardon attorney operates out of the Justice Department. As a result, before any request for clemency can land on the president’s desk, it has to survive review by a gantlet of people whose job it is to win convictions, not undo them. In some cases, the same prosecutors who sent a person to prison are asked to weigh in on granting that person mercy. It’s “akin to having Yankees fans pick the Red Sox’s starting pitcher,” wrote Mark Osler, a law professor at the University of St. Thomas School of Law who advocates for comprehensive clemency reform.

Prosecutors’ built-in biases are exacerbated by the fear of public blowback if any grant of clemency goes wrong — say, if a person commits a crime after being granted relief.

Clemency Power ›

Presidential Pardons, Explained

President Trump has discussed potential pardons that could test the boundaries of his constitutional power to nullify criminal liability. Here’s some clarity on his ability to pardon.

    • May a president issue prospective pardons before any charges or conviction? Yes. In Ex parte Garland, an 1866 case involving a former Confederate senator who had been pardoned by President Andrew Johnson, the Supreme Court said the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” It is unusual for a president to issue a prospective pardon before any charges are filed, but there are examples, perhaps most famously President Gerald R. Ford’s pardon in 1974 of Richard M. Nixon to prevent him from being prosecuted after the Watergate scandal.
    • May a president pardon his relatives and close allies? Yes. The Constitution does not bar pardons that raise the appearance of self-interest or a conflict of interest, even if they may provoke a political backlash and public shaming. In 2000, shortly before leaving office, President Bill Clinton issued a slew of controversial pardons, including to his half brother, Roger Clinton, over a 1985 cocaine conviction for which he had served about a year in prison, and to Susan H. McDougal, a onetime Clinton business partner who had been jailed as part of the Whitewater investigation.
    • May a president issue a general pardon? This is unclear. Usually, pardons are written in a way that specifically describes which crimes or sets of activities they apply to. There is little precedent laying out the degree to which a pardon can be used to instead foreclose criminal liability for anything and everything.
    • May a president pardon himself? This is unclear. There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway. As a result, there has never been a case which gave the Supreme Court a chance to resolve the question. In the absence of any controlling precedent, legal thinkers are divided about the matter.
    • Find more answers here.

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