Presidential Pardons: Use and Misuse

Paul Manafort, recently convicted on eight counts of bank and tax fraud, retains the approval of President Trump, who calls him a "good man" and appreciates his loyalty. The president may be considering a pardon.  Would it be legal?  Absolutely.  Would it be justified?  That requires historical and Constitutional reflection.

Article II, Section 2 grants the president "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."   A pardon eliminates an indictment, conviction and penalties.  A reprieve (commutation) only reduces the penalty.   

Criminal codes can be severe, Alexander Hamilton noted in Federalist #74, and innocent people might be convicted.  The pardon was designed to provide "exceptions in favor of unfortunate guilt,"  else "justice would wear a countenance too sanguinary and cruel." 

Correcting injustice was not the only goal.  The end of the Revolutionary War did not see the end of violence. Strong passions and fear of any centralized power had led farmers to rebel against tax and debt collectors in western Massachusetts in 1786.  Could more rebellion be coming?  Foreseeing such situations, Hamilton said, "a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth."

The pardon power, then, was designed primarily to protect those wrongly convicted and contribute to healing the nation in times of turmoil. 

This power belongs to the president alone.  The Framers considered ways to constrain it but rejected them.  Once again, Hamilton explained.  Sharing such power with the legislature could lead a majority to refuse its use when angry at those whose actions precipitated its necessity.  Still further, groups can be slow to act when "[T]he loss of a week, a day, an hour, may sometimes be fatal."

Opponents worried about its abuse. At the Virginia ratifying convention in June 1788, George Mason said: "Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.  It may happen, at some future day, that he will establish a monarchy, and destroy the republic  If he has the power of granting pardons before indictment, or conviction, may he not stop  inquiry and prevent detection?"

The president's pardon power has been contested ever since.  In the republic's first century, presidents stayed close to Constitutional intent.  Washington pardoned two men convicted for the Whiskey Rebellion against excise taxes on spirits in 1794.  John Adams pardoned those involved in Fries's Rebellion (also against taxes) in 1799.  Lincoln widely issued pardons for young deserters during the Civil War.  Andrew Johnson and Ulysses Grant pardoned thousands of Confederates to help heal the nation.

The pardon power seems more immersed in political calculations in recent years with charges that it is used to forgive crimes of presidential favorites.  Bill Clinton's pardon of Marc Rich, indicted for tax evasion and illegal trading but whose ex-wife was a major donor, is one example.  George W. Bush's commutation of the sentence of "Scooter" Libby for perjury in connection with "outing" a covert agent, and Donald Trump's pardon of far-right activist  Dinesh D'Souza for illegal campaign contributions and Joe Arpaio, a hard-line immigration sheriff, for criminal contempt of court are others.

Of course, one person's "political calculation" is another's "correction of injustice," so how can we protect the pardon power from being a danger to democracy?  

One way is to ask if a pardon is consistent with Constitutional intent.  This can be aided by demanding a public explanation.  When Gerald Ford pardoned Richard Nixon, he did not hide in the shadows of a press release but spoke from the Oval Office.  He offered Constitutional reasons, citing the difficulty of speedy due process and a fair trial for Nixon, and prolongation of the "ugly passions" which Watergate aroused.  He cited "my duty, not merely to proclaim domestic tranquility but to use every means I have to insure it."  He was not convincing at the time, though reflection from the distance of future years has changed many minds.

The second way came in James Madison's response to George Mason: "There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him . .  ."

Yet impeachment is as difficult as it is drastic.  Another option is the ballot box.  Ford lost a close election in 1976 after he pardoned Richard Nixon.  Evidence suggests the difference came from voters who chose Jimmy Carter solely out of anger at Ford.

These correctives will not always satisfy.  A person who does not deserve a pardon may still get one.  So it is also helpful to remember, and perhaps shine the light of public opinion on, the fact that acceptance of a pardon is a confession of guilt, as concluded by the Supreme Court in Burdick vs. United States (1915). A president can pardon but not absolve a crime.

In our highly politicized times, where the rights of presidents may not always be balanced by their sense of Constitutional fidelity, we should remember why the pardon power was given - and demand accountability for its proper use.

Photo Credit: Mike Licht