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Watching the daily deluge of reports of malfeasance oozing from this administration, I become more and more unsettled that Donald Trump wields the power of the pardon. His abusive use of pardons so far, and his allusions of implementing it to protect his allies constitute an unprecedented threat to our democracy.
While the Founding Fathers were wary of an executive assuming monarchical powers, they saw a pardon power as an important check on the justice system and a channel to extend clemency to those deserving of mercy.
The Constitution’s only mention of the pardon power appears in Article II, Section 2, which posits that the president “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
That brevity belies what is expansive authority. The president can free any American from federal criminal liability (as well as commute sentences or restore rights diminished by conviction). A pardon can cover past acts and be applied whether a person is under investigation, is on trial, has been convicted, or has long been out of prison.
Gerald Ford’s pardon of Richard Nixon was a “full, free, and absolute pardon…for all offenses,” excusing Nixon for any misdeeds he undertook while occupying the presidency, and thereby preempting any possible indictments for Watergate.
In reflection of the seriousness of issuing pardons, the Justice Department uses an elaborate vetting process that reviews all applicants. Because of these guidelines, and the crush of people seeking relief, obtaining a pardon is extraordinarily difficult.
In the end, the power to pardon resides solely in the president’s hands, it is unreviewable, and it takes immediate effect. Justice Department guidelines are advisory regulations.
And in a short time in office, Donald Trump has ignored any pretense of process and dismissed all important regulations.
Last August Mr. Trump pardoned the former sheriff of Arizona’s largest county, Joe Arpaio, following his conviction for imposing a reign of racial profiling terror against Latinos and for the systematic mistreatment of prisoners in his custody.
And in April, Trump pardoned Lewis “Scooter” Libby, the former top aide to Vice President Dick Cheney, who was convicted in 2007 of perjury, lying to FBI agents, and obstruction of justice.
Mr. Trump did not follow Justice Department recommendations in issuing his pardons. Both Arpaio and Libby were convicted, and neither man ever expressed a syllable of responsibility or contrition – the bedrock requirement for one to even be considered the honor of a pardon.
In ordinary times, these acts would by themselves be possible impeachable offenses, and the subject of intense congressional scrutiny. Yet Republicans have shrugged them off.
Trump’s pardon of Libby, whose case has long been off the front pages, was a signal of something deeply nefarious. So too are the White House’s allusions to the president’s pardon authority, and even Mr. Trump’s recent pardon for the deceased boxing champion Jack Johnson, who was convicted of a racist charge in 1913.
In itself, the pardon of Johnson is a good thing, and should have been done decades ago. But the timing is bizarre. As is his twitter announcement just this morning that he would pardon race-baiting felon Dinesh D’Souza. Trump’s dredging up Johnson’s case and these other actions constitute an unmistakable pattern of gestures to men like Michael Cohen that if they stay silent in criminal probes, the president will erase any possible federal criminal liability at the stroke of his pen.
There is nothing to stop Mr. Trump from pardoning Cohen, Mike Flynn, or anyone else from any illegal acts they have ever committed. Even whether Trump could pardon himself is an open question our courts have never had to answer. But we have never dealt with a president and a political party so hostile to democratic norms before.
Some observers have taken heart that even if Trump abuses his power, pardoned individuals could still potentially be charged for misdeeds by state prosecutors. Further, many scholars believe Donald Trump’s use of pardons to squelch criminal investigations could itself be obstruction of justice. I take limited solace in these avenues.
Warren Harding never pardoned members of his Ohio Gang that pillaged the treasury. Richard Nixon did not pardon Spiro Agnew, John Mitchell, H.R. Haldeman, or John Ehrlichman. George H.W. Bush pardoned several men implicated in Iran-Contra, but declined to pardon himself.
Recognizing the awesome reach of the pardon power, even our worst presidents did not misuse this sword to shield their associates and protect themselves. They held some awe for the gravity of their responsibilities.
There have been reports that Trump has asked his aides about pardons for his family members and himself to preclude the ongoing Special Counsel probe. When asked about pardoning Flynn, who has already pled guilty to federal crimes, Trump cryptically replied, “We’ll see what happens.”
Congress is not powerless here. Short of impeachment, we hold subpoena power to compel testimony in furtherance of scrupulous oversight. Yet, Republicans have refused to exercise even the barest supervision despite the onslaught of corrupt abuses in the Trump administration.
Following the Arpaio pardon, Democrats on the House Judiciary Committee demanded hearings, only to be ignored by Republicans. After Libby’s pardon, Democrats led by Rep. Jerrold Nadler (D-N.Y.) again called for hearings. Congress must follow Nadler’s calls and convene immediate proceedings. If Trump uses pardons to flout the law and faces no consequences it may be a genie that can’t be put back in the lamp.
Near the end of his tenure, Chief Justice John Marshall called the pardon “an act of grace, proceeding from the power entrusted with the execution of the laws.”
Were Donald Trump to issue pardons for his business associates, family members, or himself, these acts would constitute the gravest abuse of power in American history because they would be a clear statement by Trump that he is above all laws. How this Republican Congress would respond is an open question.