PD Editorial: Trump demonstrates the need for pardon reform
Donald Trump is not the first president to abuse his most kingly prerogative, the all-but-unlimited power to pardon people convicted of federal crimes. But Trump has turbocharged the misuse of the pardon, highlighting a long-standing need for reform.
President George H.W. Bush demonstrated the potential for political abuse when he pardoned six people involved in the Iran-Contra scandal. President Bill Clinton combined clemency with self-dealing when he pardoned Marc Rich, a fugitive tax-evader and megadonor to Democratic causes.
Trump’s pardons are a high-octane cocktail of both politics and cronyism. On Dec. 22 and Dec. 23, he issued nearly 50 pardons. One went to convicted fraudster Paul Manafort, the president’s one-time campaign manager. Another went to the perjurer Roger Stone, Trump’s confidant and fixer. The president pardoned tax dodger Charles Kushner, his son-in-law’s father.
And Trump issued pardons to four employees of Blackwater, a private security firm founded by the brother of Education Secretary Betsy Devos. The four were convicted of killing Iraqi civilians, including children, in 2007.
In fairness, Trump has shown restraint in the number of pardons he’s issued. As of this week, Trump has issued only 94 pardons and commutations — fewer than any president in the past century.
What’s striking, then, isn’t the total number but how many were outside the norm. A Dec. 29 analysis by Harvard law professor Jack Goldsmith found that 86 of Trump’s 94 pardons to date were “aberrant” — they circumvented the normal review process and benefited either celebrities or people who had political or family ties to the president.
More aberrant pardons might lie ahead. During his remaining weeks in office, Trump could issue preemptive pardons to members of his administration and family. Trump might even take the unprecedented step of pardoning himself.
The founders did not add the pardon power to the Constitution so that presidents could reward their friends and protect their families. Alexander Hamilton, in Federalist 74, wrote that the pardon power is needed because without it, “justice would wear a countenance too sanguinary and cruel.” The pardon is meant to be a final remedy for injustice and an instrument of mercy.
President-elect Joe Biden must dedicate himself to restoring those intended purposes. Biden should create a system to ensure that pardons are granted only to those who deserve them and only to serve the public’s interest in justice.
One proposal, outlined by professor Mark Osler in the University of St. Thomas Law Journal, calls for the creation of a presidential board or commission to review requests for clemency. Such a board would take the review process out of the hands of the Justice Department, whose office of the pardon attorney tends to reflect prosecutors’ perspectives and answers to partisan politicians.
Biden could create a clemency board by executive order, along with a mandate that its proceedings be fully transparent to the public and Congress. He also could renounce prospective pardons — those granted before a person is charged or convicted.
If presidents will not use their pardon power judiciously, a constitutional amendment limiting that power may be needed. But first, Biden should try to show that a new pardon system, coupled with a restoration of self-discipline and integrity to the White House, will be sufficient.
You can send letters to the editor to firstname.lastname@example.org.