Monday, December 14, 2020

The Presidential Pardon - Uses and Abuses

As was easily foreseeable, Trump has made the power of the pardon a center of attention. When we saw what was going to happen, David Levine and I wrote a paper that gave the necessary background and proposed a solution: we proposed the Constitution be amended to require that all presidential pardons receive the co-signature of the Speaker of the House to become effective.

In this post I want to state succinctly the legitimate aims of a pardon, and its dangers.

The power of the pardon is surprisingly complex. The most legitimate aims of pardoning are:

  • to extend mercy for its own sake, perhaps to rectify either a faulty conviction or a too-severe sentence.

  • to extend mercy for state purposes, as did George Washington with the Whiskey Rebellion, Lincoln and Johnson with the Civil War, and Carter with Vietnam draft evaders, to quell dissent and bring dissidents back into the fold.

There are also subtle effects of the pardon that can be positive. Extending a pardon demonstrates and strengthens the perception of sovereignty – he or she who extends mercy is clearly in charge. Extending a pardon can also enhance one's credentials for beneficence. As we can see from Trump's actions, extending a pardon can be very theatrical, a flagrant display of power and sovereignty, the real life equivalent of deus ex machina. This display can be a positive, because in the end, the bedrock requirement of government is that of sovereignty. Who gets to rule, and by what right? In this sense, even in extending pardon, one strengthens the legitimacy of the state, and enhances its obvious power to do good.

Even when the pardon is used legitimately, however, there are hazards.

  • Just as sovereignty is central to the state, so is respect for the laws. Yet the intervention of a pardon by its very nature undermines respect for law in favor of an individual judgement – which led 16th century French political theorist Jean Bodin to oppose pardons completely.

  • The pardon can also seem unfair to those in a similar situation who go unpardoned, and if the pardon involves someone who hurt someone else, then the injured person certainly can feel additionally burdened.

  • The pardon can locate sovereignty in one section of government to the detriment of another – lodge it with the President, and the legislative branch is diminished, and vice-versa. One solution for this is to de-theatricalize and bureaucratize the power, as it has been through the Office of the Pardon Attorney in DOJ for over 100 years.

  • The pardon can also be unwise. Without extracting remorse and guilt, the pardon can enable a miscreant not to lose prestige, and enable them to continue the harm they have already done. Hard as it may be to say, some people just need to be locked up.

Even more nefarious, of course, is when the pardon is used for illegitimate purposes.

  • The pardon can be used for personal and political purposes. Constitutional Congress member George Mason raised the question of how the president might use the pardon illegitimately, and the constitution as written does exclude pardons “in the case of impeachment,” but this is in the process of proving wholly inadequate. Pardons have been used to protect a president from investigation (Iran-Contra), and the lure of a pardon has done the same (Trump.) Hamilton's responses, that the prospect of opprobrium and the possibility of impeachment as retardants to such actions, ring false to us today. The honor system does not work when the officials have no sense of honor.

  • A second illegitimate use is even more insidious – what if the pardoner disagrees with a law itself, and pardons as a virtual veto of that law? Would the pardon serve as a lever to override the other branches of government, as does the Arpaio pardon? This is an even worse transgression that self-interest, because it's effect is to bring down the very structure of the government. Again, the honor system is proving insufficient.

As revisions to the pardon system are considered, it would be well to keep these considerations in mind. In history the power to pardon has not always rested simply with a King or President or Governor. It is possible to lodge it with other branches of government and to decrease its chances for being abused. There may be times when an unbounded ability to pardon can be justified, and others when more guardrails need to be in place.

Budd Shenkin

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