It’s Time to Limit the Pardon Power
The Administration’s most indefensible actions are always taken on Fridays, in the hope that they will receive less media attention over the weekend. On Friday, Donald Trump commuted the sentence of his friend and crony Roger Stone, who was convicted by a jury of lying to investigators about his efforts in collaboration with WikiLeaks founder Julian Assange to smear Hillary Clinton during the 2016 election. Before and after his conviction, Stone refused to testify regarding Trump’s knowledge of or involvement in his criminal activities and then, hoping to cash in on his loyalty, lobbied Trump for the reprieve delivered on Friday.
Article II, Section 2 of the Constitution provides that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The grant of such unchecked power is rare, as the genius of the Constitution lies in its organizing principle of checks and balances, a system which generally limits the ability of any branch of government to take actions disapproved by the others. Why did the Framers make an exception for pardons and reprieves? As Alexander Hamilton explained in Federalist №74,
“The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
Not all of the Framers were comfortable with the sweeping scope of the Executive’s power to pardon. George Mason of Virginia cautioned that the pardon power could be “exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.” Governor George Clinton of New York worried that it would lead to the “establishment of a vile and arbitrary aristocracy or monarchy.” But in an era in which the Presidency was occupied by statesmen like Washington, Adams, Jefferson and Madison, the quality of mercy prevailed over the fear of influence and favor.
The Framers apparently did not foresee Donald Trump, a man who simply doesn’t care how his actions are perceived and who makes a practice of elevating his personal interests over the interests of justice and of the nation. While even Richard Nixon considered the pardoning of convicted cronies such as John Mitchell, Bob Haldeman and John Ehrlichman to be a political non-starter, Trump has no such qualms. That he feels no constraint is largely due, of course, to the craven willingness of today’s GOP to support him no matter how despicable his conduct.
Although it appears increasingly likely that the voters will reject Trump’s bid for a second term, the election of 2016 and the nightmare of the last three and a half years demonstrate how dangerous unchecked power is in the hands of a corrupt chief executive. While we can hope and pray that a man like Donald Trump will never again be elected to the Presidency, we would be foolish to count on it. And although a corrupt and self-interested exercise of the pardon power may not be the greatest threat that an evil or malicious president poses to the nation, it is damaging nevertheless, for it undermines a cardinal principle of a democracy: that the laws apply equally to all, and that no one, including the president’s friends, appointees, agents and political supporters, is exempt from justice.
I propose, therefore, a Constitutional amendment that would place reasonable limits on the president’s power to grant pardons and reprieves. Such an amendment might read as follows:
“The power to grant reprieves and pardons for offenses against the United States shall not extend to offenses in whose commission or concealment the President has been alleged by a duly-appointed prosecutor to have been personally involved; nor shall such power extend to reprieves or pardons of individuals or corporations from whom testimony has been sought with respect to offenses allegedly committed by the President or his agents.”
In a properly-functioning democracy, such an amendment might not be needed. Unfortunately, we can no longer pretend that our political leaders will honor their oath to “preserve, protect and defend” the Constitution of the United States, or will adhere to the values and norms that have been respected by their predecessors. Donald Trump has commuted the sentence of Roger Stone; I predict that before he leaves office he will do the same for additional friends and cronies. We cannot act quickly enough to prevent him from doing so, but perhaps we can prevent the next Donald Trump — heaven help us! — from using his pardon power to buy off the corrupt and, in the process, seek to shield himself from justice.