The Mercurial Power of the Presidential Pardon
Updated: Feb 11, 2020
Presidential Pardons have a long and capricious history.
Scooter Libby, the former Chief of Staff to Dick Cheney, had his sentence commuted by George W Bush and was subsequently pardoned by Donald Trump. He had lied about a CIA leak that had recklessly outed a CIA operative and put her life in danger. Ronald Reagan pardoned Marvin Mandel, the former governor of Maryland who had been convicted of mail fraud and racketeering and, most famously, Gerald Ford pardoned his predecessor, Richard Nixon, for his role in the Watergate Scandal. Pardons have a not-so-illustrious history of allowing the governing elite to cover their own backs. More often than not they also share in a seedy dash of political bias and a sprinkling of unashamed nepotism. The pardoning of Joe Arpaio, the former Arizona Sheriff and ardent Trump supporter, and Roger Clinton are particularly impenitent examples of how the presidential pardon has been abused.
In the Federalist Paper no. 74 Alexander Hamilton argues that, “in seasons of insurrection or rebellion there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
In truth, the intention behind the presidential pardon lies directly in the vast chasm between the contemporary expectation of the presidential pardon and the actuality of its use. The executive power was not conceived to exclusively right past wrongs. It wasn’t written to provide the president with an overriding power to correct the unjust rulings of the judiciary. It was written as a quick fix to resolve divisions. “The loss of a week, a day, an hour may sometimes be fatal,” according to Hamilton. In that sense, the presidential pardon was conceived with a far more murky responsibility in mind. Ethical or not, moral or not, just or not, it was presented as a prerogative of the executive to use when such clemency might resolve a deep-seated discord. According to the letter of the intention, perhaps the pardon of Richard Nixon was the most faithful deployment of the presidential pardon to date.
Now, I want to stop there for a moment and let the last line sink in before I reposition myself (even writing that has got me in a tizzy). The world is a much different place to when the Federalist Papers were written. The judicial system has refined itself a shade or two. Alexander Hamilton was writing with a specific context in mind and our rule of law should be employed in accordance with the times in which we are living. Simple readings are often predicated on simple (and invariably agenda-specific) intentions. Operating on the perceived, original objectives of the presidential pardon is a bit like taking a Scalian interpretation of the Constitution. (Yeah, that’s right. Bring it on, you textualists out there.)
Nevertheless, the broad interpretation that the presidential pardon is to be used to settle political discord rather than absolve the guilty party is often disregarded. The idea that the role of the presidential pardon should somehow be repositioned to individually review judicial decisions on a case-by-case basis is a dangerous precedent that can recklessly impose political will and populism at the expense of a government system of checks and balances. The presidential pardon is not the place to absolve guilt in the public eye. That should be the prerogative of a legislative congress and a diligent judiciary to repeal inadequate laws and retrospectively absolve culpability.
In this past week, Donald Trump posthumously pardoned Jack Johnson, the African-American former heavyweight boxer who was convicted in 1913 for taking his white girlfriend across state lines, and Dinesh D’Souza, a right-wing political commentator who was found guilty of illegally contributing $20,000 to a political campaign. He has also met with political luminary Kim Kardashian over the potential pardon of Alice Marie Johnson, a grandmother serving life without the possibility of parole for a drug offense. Trump received near unanimous (although, from many quarters, begrudging) praise for the pardon of Jack Johnson. The response to D’Souza, meanwhile, has been contemptuous at best.
I agree wholeheartedly with the reaction to the two acts, but it is the reasoning expounded by the media and the *ahem* twittersphere that is a cause for worry.
In the case of D’Souza, Trump argued the man had been “treated unfairly,” an implication that his sentencing was unjustified. Because of Trump’s reasoning, the outcry has been centred on the fact that his pardon is synonymous with his absolution of guilt. That is contrary to the findings of the court, an undermining of the judicial process and an establishment of double standard between those that the president chooses to cherry-pick and those that he, through inaction, chooses to languish. Not even the president should have the power to autonomously dictate the freedom of citizens. However, more importantly, D’Souza’s pardon serves no reconciliatory duty. It settles no political discord. This is no commander-in-chief mediating for the good of the country. It is a backhanded deal to satisfy his own whims. It is literally a “get-out-of-jail-free” card for D’Souza.
For Jack Johnson, the same argument can be made that his pardon goes contrary to the findings of the court and that no president should have the autonomy to dictate guilt or innocence of a citizen. Yet, crucially, there are two differences. The prerogative of Congress has sought to rectify the racist laws that found Jack Johnson guilty. Trump is not absolving a man of guilt, but rather reallocating our current legal apparatus on a historical case. In that sense, there is no guilt to absolve. Of even greater importance, however, is the fact that Trump’s decision here, whether intentional or not, serves a reconciliatory duty. It goes far beyond an individual case and attempts to diffuse a racial discord that continues to escalate. Pardons like Jack Johnson’s are exactly what the power should be used for. Not only that, take a moment to research the individuals that Obama, Bush and the many presidents before them chose to pardon. You will be hard pressed to find pardons that fulfill a reconciliatory function, which is why, in this case, Trump should be praised even more (on this very specific issue, in this very specific case. Enough caveats, everyone)?
Trump may not have done it for those reasons, but the act itself should be revered not over an issue of guilt or lack thereof, but over its conciliatory outcome. The potential pardon of Alice Marie Johnson should also be pursued with the same vigour in once again reallocating our current legal apparatus on a historical case as well as striking a conciliatory tone. The law that put Ms Johnson behind bars is a product of a chapter in history that has wrongly brought pain and anguish to those who were excessively imprisoned.
Nevertheless, if the rumblings are true that Martha Stewart and Rod Blagojevich are also set to be pardoned, then Jack Johnson’s pardon - and the likely pardon of Ms Johnson - can go down as a brief moment of praise in an otherwise shameless abuse of the presidential power. As the phrase goes, even a stopped clock tells the right time twice a day.