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The power and politics of pardon

September 9th, 2018

Under the US constitution, an American president has a virtually untrammelled power to pardon, or commute the sentence of, anyone convicted of a Federal offence (but not offences under State law). It is a power completely personal to the president, who can exercise it for any reason, or for no good reason, and it has been used surprisingly often: 1,927 times by Barack Obama, for example. Although there is a government department, the Office of the Pardon Attorney, through which applications for presidential clemency are usually routed, there is no obligation on the president to follow that process.

In many cases, the power is used to redress obvious injustices or excessive sentences in the US criminal law system. For example, few people would quarrel with Trump’s order to release Alice Marie Johnson (who was convicted to life imprisonment in 1996 for drug dealing offences), even if it required celebrity intervention to get the president’s attention. Sometimes the power is used to help heal national divisions, as in Carter’s pardon of all Vietnam draft dodgers. Some examples are purely symbolic, the most recent being Trump’s posthumous pardon of boxer Jack Johnson for the quaintly American (but racially supercharged) 1912 crime of “transporting a woman across state lines for immoral purposes”.

However, there is nothing to prevent a president from exercising the power of clemency capriciously, for political reasons, or as a favour to cronies or family. When controversial Sherriff Joe Arpaio was convicted of contempt of court for refusing to comply with a court order to stop racial profiling, Trump pardoned him before he was even sentenced. An outrageous example of partisan meddling in the justice system? Perhaps, but not obviously more so than Clinton’s pardon of Marc Rich, coincidentally after Rich’s ex-wife made large donations to the Democratic Party and the Clinton Foundation.

Various of Trump’s staff and associates have already been convicted of or pleaded guilty to crimes, although so far these nearly all relate to matters unrelated to the Trump campaign. Criminal investigations continue, but Trump has made it clear that he regards them as politically motivated. Whatever the outcome of those investigations, Trump can if he wishes simply pardon anyone convicted. The mere existence of this power of pardon blunts the leverage of investigators to coerce potential witnesses into testifying in exchange for immunity or plea-bargaining.

All this means that those looking to the criminal justice system to bring down the Trump administration, via his associates, are probably going to be disappointed, irrespective of who else, if anyone, ends up being indicted; legally, he holds the Trump* card. He can even pardon in advance anyone who might in future be charged with any offence arising from the Mueller investigation.

Of course, it would be shameless to exercise that power for his cronies or his family, but no-one ever accused Donald Trump of insufficient shamelessness. His supporters already think that the investigations are politically motivated so the political cost would be minimal. In any case, since President Clinton used his power to pardon his own brother, and to pardon Susan McDougal (the Clintons’ business partner in the Whitewater land deal), the moral high ground has already been vacated.

Short of impeachment – which looks numerically near-impossible, given the need for a two-thirds majority in the Senate – Trump’s opponents will have to think of something else. How about selecting a compelling candidate for the 2020 presidential election, and mounting a strong campaign? It might just work.

* Beat that pun, TSE!

Richard Nabavi