“Jesus,” Saikrishna Bangalore Prakash notes in The Presidential Pardon, “is essentially the most celebrated individual not to obtain a pardon.”
by Saikrishna Bangalore Prakash
Harvard College Press, 208 pp.
Fairly so. However second place should go, I believe, to the Prophet Daniel, whose biblical story illustrates why a pardon energy is required. Throughout the Babylonian Captivity, the story goes, Daniel grew to become a valued adviser to the (probably legendary) Persian King “Darius the Mede.” The Medes and Persians believed that an edict of their king, as soon as written and proclaimed, couldn’t be modified—not even by the king himself. Depraved advisers tricked Darius into decreeing a kingdom-wide 30-day ban on prayer—one which Daniel, an observant Israelite who had develop into Darius’s trusted adviser, had no selection however to violate. With a helpless shrug, Darius consigned the younger man to the lions’ den, absolutely anticipating him to be eaten. Because it turned out, the lions miraculously avoided consuming him. As for the depraved counselors, Darius later fed them to the lions as comfort snacks.
Prakash’s small e book arrives at a fraught time for the Structure typically and the pardon clause specifically. Those that discover the difficulty perplexing would do nicely to begin their analysis right here.
It’s protected to say that Trump’s abuse of the pardon energy has no parallel in American historical past. Nearly each president has granted a number of that appear dodgy looking back; many have used them as an instrument of partisan politics; a number of have used them as devices of corruption. However in extent and scale, Trump’s pardons fall nicely under the subterranean moral ground established even over the previous 50 years. In pardoning 1,500 rioters convicted of involvement within the January 6 riot, Trump confirmed contempt for the legislation enforcement officers who protected the Capitol, and the system of presidency they preserved. His different pardons, from crypto fraudsters to international drug lords, reek with contempt for the very thought of legislation. Trump can be the primary president to say the facility to undo a predecessor’s pardons, and the primary to say the facility to pardon an offender convicted by a state, not the federal authorities.
Now we have come a great distance from the Medes and Persians: Article II, Part 2, Clause 1 of the U.S. Structure grants the president “Energy to grant Reprieves and Pardons for Offences in opposition to the USA, besides in Instances of Impeachment.” The sweep of the facility is breathtaking. Certainly, it’s arguably wider than the royal pardon energy that the Framers had been imitating. British apply was acquainted to the lads who framed the clause. In the event that they supposed to incorporate the British limitations, nonetheless, they stumbled: By the textual content of the Structure, the facility has been held to reside solely within the president (“he shall have Energy”) and lengthen to all “Offences in opposition to the USA, besides in Instances of Impeachment.” “The Supreme Courtroom’s studying of the Structure makes the president extra highly effective than the British Crown of the eighteenth century, for whereas Congress can not regulate the presidential pardon energy by statute, the British Parliament definitely might,” Prakash notes.
The pardon energy makes the president one thing of a god. That’s harmful—however it’s speculated to counteract the hazard of a Structure that doesn’t take account of its personal propensity to error.
Shakespeare known as mercy “an attribute to God himself.” The pardon energy makes the president, on this space not less than, one thing of a god. That’s harmful—however it’s speculated to counteract the hazard of a Structure that doesn’t take account of its personal propensity to error, just like the “legislation of the Medes and Persians.” However as with God’s mercy, the right scope of the pardon clause can’t be solely outlined or absolutely defined. When does mercy develop into whim? When does it develop into a reward for or an instrument of crime? When is it simply sleazy and disgusting? When is it godlike and when is it demonic?
The pardon clause has created puzzles and paradoxes actually for the reason that daybreak of the Republic, and presidents have been idiosyncratic of their strategy. Barely a 12 months into the primary Washington administration, farmers in western Pennsylvania, incensed by a federal excise tax on whiskey, organized a rise up and tarred and feathered two federal emissaries. President George Washington personally led the Military into the state, subdued the rise up—after which pardoned its leaders even after a federal jury had convicted them of treason. No Darius the Mede he: It appeared wiser to the primary president to conciliate the rebel farmers than to insist on the letter of the legislation. Abraham Lincoln would pardon deserters, and even repentant traitors, with a number of phrases (for instance, “Let or not it’s completed”) scribbled on a letter begging for mercy.
These are grace notes. Prakash’s story actually begins with 1974, when Gerald Ford issued the notorious “full, free, and absolute pardon” to Richard Nixon for his crimes throughout Watergate. That act of clemency most likely value Ford an election in his personal proper, however has come to be considered extra charitably by some historians. “I’m inclined to assume the choice was courageous,” Prakash writes. “What is obvious is that, as soon as once more, many insisted that the clemency rested on ignoble motivations.”
Jimmy Carter, on this as in so many different areas an outlier, promised an amnesty for Vietnam Conflict–period draft evaders and saved that promise. However he refused to pardon people besides on suggestion of the Division of Justice’s Workplace of the Pardon Legal professional (a submit created by Congress in 1894). George H. W. Bush pardoned the Iran-Contra conspirators; Invoice Clinton pardoned his half-brother Roger, and a fugitive financier, Marc Wealthy, whose spouse Denise “had made substantial donations to the anticipated William Clinton Presidential Library and Hillary Clinton’s marketing campaign.” George W. Bush in 2007 used his clemency energy to spare I. Lewis (“Scooter”) Libby, his vice chairman’s chief of employees, who was convicted of perjury and obstruction of justice for his position in thwarting an investigation right into a leak of a CIA officer whose husband had been crucial of the run-up to conflict in Iraq.
Besides in Libby’s case, Prakash notes, Bush was considerably stingy together with his mercy—as was Barack Obama:
Bush and Obama knew their reputations wouldn’t undergo from rejecting most pardon candidates. But the aversion declined over time, and supposed classes had been forgotten, main President Obama’s successors to be extra adventurous and aggressive. Exploiting the pardon pen for political or private functions was maybe too tempting, bordering on irresistible.
The final two presidential transitions noticed chief executives wield the pardon pen in numerous unseemly methods—pardoning relations concerned in questionable monetary doings, on the one hand; pardoning convicted insurgents who tried to destroy the republic on the opposite.
Additional, as his second time period progresses, Donald Trump’s pardons are rising extra flagrant and weird. On December 1, he pardoned former Honduran President Juan Orlando Hernández, a convicted drug kingpin who despatched 400 tons of cocaine into the USA and as soon as boasted that he was going to “stuff the medicine proper up the noses of the gringos.” The following day, Trump posted on Reality Social that he was terminating all of Joe Biden’s pardons signed by an autopen. (One president can’t terminate a earlier president’s pardon. And the reviled autopen was invented and first utilized by none apart from President Thomas Jefferson, thought of by some to have had some information of the Structure.) By no means tiring of his hunt for brand spanking new norms to violate, Trump on December 11 pardoned Tina Peters, a former Arizona official whose offense was permitting entry to state voting gear to “Cease the Steal” activists in search of to problem the 2020 presidential election.
The joker on this newest pardon: Peters was convicted in a state courtroom of a state crime. For a while now—since, oh, I don’t know, roughly 1788—everybody who learn the Structure understood the phrase “in opposition to the USA” to present the president energy solely in federal instances. Peters’s legal professionals at the moment are demanding her launch, on the completely meretricious declare that “the President of the USA has the facility to grant a pardon in any of the states of the USA.” Not content material with that, Trump has taken his bloated distortion of the pardon energy international: He threatened retribution in opposition to Brazil when it refused to drop all expenses in opposition to its former President Jair Bolsonaro, and has additionally demanded that the federal government of Israel pardon his crony Benjamin Netanyahu.
Thus, in America in 2025, the standard of mercy is, nicely, fairly doggone strained. Prakash is open-minded to a level that can frustrate some readers who need particular solutions. However he’s clear in his distaste for the sordid hugger-mugger of up to date pardon politics. In 2025, we’re, he suggests, dwelling in a “pardon dystopia,” a slovenly collapse into the decrease depths of presidential ethics. If his reply to our dilemma is much less concrete than one would possibly want (“my view is that we’d like fewer misguided or unjust pardons and extra praiseworthy ones”), that will simply circulation from the issue of limiting a godlike attribute.
Prakash believes that the present morass will not be the work of Trump alone. He questions Biden’s amnesty for all these convicted of marijuana possession and use and his commutation of sentences of most prisoners going through the federal demise penalty:
Biden’s marijuana pardons and demise penalty commutations open a courageous (and horrifying) new world of coverage pardons, the place the president is pardoning not due to an individual’s explicit circumstances or due to a uncommon have to pacify rebels, however merely as a result of the president disapproves of the underlying coverage that the legislation displays.
Properly, maybe. (Absolutely it’s related that almost half of the American states have ended the farce of marijuana prohibition?) In addition to, is that this actually a “courageous new world”? Throughout his time in workplace, Thomas Jefferson was broadly criticized for pardoning the 4 public figures convicted underneath the Adams administration’s grotesquely one-sided Sedition Act. These had been defendants convicted of supporting Jefferson within the run-up to his 1800 election. They had been, in actual fact, responsible of this “offense.” Jefferson argued that the act (which had expired on the finish of Adams’s time period) was unconstitutional in addition to a foul thought. Absolutely this smacks of “coverage pardoning”? Equally, Andrew Johnson liberally pardoned wealthy southern slaveowners and Accomplice public officers, partly as a result of he hoped for his or her assist in a presidential run—but in addition to forestall measures that will give political energy to Black People. Pure politics, coverage, or each?
Along with his marijuana amnesty and demise row commutations, Biden, on the evening earlier than he left workplace, additionally issued pardons to figures like Basic Mark Milley, who had incurred Trump’s wrath by serving to thwart Trump’s suggestion that the army “simply shoot [George Floyd protesters] … simply shoot them within the legs or one thing.” Trump had recommended that Milley deserved punishment, maybe “DEATH!”
“Although contentious sufficient,” Prakash writes, “these had been the much less divisive of Biden’s midnight pardons.” Biden additionally pardoned his son Hunter and different members of his household. Prakash sees corruption in these. “For a few years, Joseph Biden had been concerned in a sordid enterprise, the place he was the product,” and the pardons protected relations who had profited from Biden’s workplace.
This “each sidesism” is liable to enrage hard-core Biden loyalists, however I’m not one and I by no means thought that Biden’s strategy to the household enterprise was defensible, nor his hobnobbing with millionaires. There’s a counterargument, although. Trump had already promised to make use of felony justice as a political software to jail his critics, and had been no much less express about his plans to jail Hunter Biden, and “the whole Biden crime household.” This was a lawless menace to misuse the legislation. Blocking a malicious prosecution of the Bidens, sleazy although their conduct could have been, will not be the ethical equal of interfering with the unusual course of justice. It was, as an alternative, impeding corrupt misuse of state energy.
(And as for Hunter, that’s a particular case. A father who wouldn’t pardon a baby whom Trump had promised to destroy would, in my judgment, not deserve the title of “father” in any respect. Criticize Biden as you’ll, I believe the Hunter pardon was amongst his greatest work.)
The center of The Presidential Pardon will not be a lot a historical past of pardon as a meditation on its applicable extent. Does the phrase pardon embody different types of clemency? Prakash provides a helpful taxonomy—full pardons (that wipe away convictions and any sentence imposed for them), commutations (orders that cut back or wipe away sentences however not the convictions), remissions (exemptions for fines owed to the federal government), amnesties (pardons provided to a whole group), preemptive pardons (which suggests the recipient can not even be tried), blanket pardons (recipients can’t be convicted of any crime dedicated throughout a time interval or exercise), and conditional pardons (orders that exempt the recipient from punishment so long as she or he does sure issues). The phrase offenses doesn’t point out that the president can solely pardon crimes—civil fines and forfeitures could also be forgiven as nicely, although not penalties awarded to not authorities itself however to people.
Can a president pardon himself? The self-pardon query is a model of what philosophers name “the omnipotence paradox,” summarized in a George Carlin routine: “If God is all highly effective, can He make a stone so massive that He Himself can’t carry it?” Students, and the Justice Division’s Workplace of Authorized Counsel, say presidential self-pardon is a paradox too far; Prakash will not be so certain.
The e book would possibly usefully have included the one restrict on the pardon imposed after 1789, which additionally marks the one profitable effort to restrict presidential energy the least bit. Starting in 1865, Andrew Johnson issued a stream of sweeping pardons, apparently in hopes of restoring the slave-owning elite to energy and packing Congress with former Confederates who would assist him for election as a Democrat in 1868. The Framers of the Fourteenth Modification, in Part 3, barred former U.S. officers who had turned coat and served the Confederacy from returning to federal or state workplace. They pointedly supplied that no presidential pardon might carry that incapacity; solely Congress, by a vote of two-thirds, might restore a traitor’s proper to carry workplace.
(That notation, in fact, leads us into the query of whether or not the Supreme Courtroom usurped a part of Part 3 in 2024 when it proclaimed that Colorado couldn’t bar Trump from its main poll, even granting that he was what Colorado Secretary of State Jena Griswold known as an “oath-breaking insurrectionist.” I might have loved studying Prakash’s view on that.)
Presidents ought to be barred from issuing pardons between Election Day and Inauguration Day, when the actually scandalous ones are likely to happen. Let presidents use the facility as they see match, however then allow them to face the voters.
Within the final a part of the e book, Prakash imagines methods to make the pardon energy higher. He means that the Supreme Courtroom would possibly in some unspecified time in the future insert itself into adjudging the applicability and scope of the pardon pen. True, on this space as in others, the Courtroom’s current selections appear favorable to presidential absolutism. “However the extra the abuses pile up, the extra tempting it is going to be for the Courtroom to rethink its precedents and pronouncements. Keep tuned.” Below current doctrine, Congress can not legislate itself a task besides by a constitutional modification. Such amendments may additionally make some offenses unpardonable; would possibly give Congress a legislative veto over pardons; would possibly repose some or all the energy in different actors, together with judges; or would possibly bar any pardon of a member of the family.
Prakash briefly mentions my very own favourite nostrum. So long as we’re imagining constitutional amendments, I believe this one might really move: The pardon energy ought to stay with the president—however she or he ought to be barred from issuing any pardon between Election Day and Inauguration Day. The actually scandalous pardons are likely to happen over the last days of a president’s time period, when the voters can’t punish the president or the president’s get together. Let incumbent presidents use the facility as they see match; however then let the president or get together face the voters, as Gerald Ford needed to do.
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