Our Founders Didn’t Intend for Pardons to Work Like This

The Constitution allows the president to forgive any federal crime, but just because he can does not mean he should.

George Washington
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On Tuesday, President Donald Trump commuted the sentence of Rod Blagojevich, the former Illinois governor and Celebrity Apprentice contestant who was imprisoned for trying to sell Barack Obama’s Senate seat. The president also pardoned the former San Francisco 49ers owner Edward DeBartolo Jr., the “junk-bond king” Michael Milken, and former NYPD Commissioner Bernard Kerik, among others. Each person had some connection to the president, a fact that the White House press announcement on the decisions made clear. Trump seems to view clemency as a way to reward celebrities and please his supporters.

The country’s Founders did not intend for the clemency power to be used as a prize. Article II of the Constitution allows the president to forgive any federal crime, but just because he can does not mean he should.

The Founding Fathers had their own ideas about how the process should work; Alexander Hamilton provided the most famous rationales for the clemency power. In “Federalist No. 74,” he noted how the president must be able to make exceptions for “unfortunate guilt”; otherwise, the justice system would be “too sanguinary and cruel.” Additionally, Hamilton pointed out that presidents may need to use clemency to quell unrest or rebellion and thereby “restore the tranquillity of the commonwealth.”

President George Washington pardoned two men charged with treason after the Whiskey Rebellion. On December 8, 1795, in his annual address to Congress, he said he was motivated to both show mercy and serve the public good. Washington’s use of these dual rationales set the clemency standard for his successors. Going forward, one or both ideas have implicitly undergirded most of the roughly 30,000 individual clemency decisions that have been granted by presidents one through 44. Each rationale has also been featured in a Supreme Court case: United States v. Wilson described a pardon as an “act of grace,” and Biddle v. Perovich described the pardon power as “part of the Constitutional scheme” and characterized clemency as a decision to be guided by “public welfare.”

Using clemency to address a larger societal concern, Presidents Abraham Lincoln and Andrew Johnson offered forgiveness to entice the Confederates to rejoin the Union. Harry Truman named a panel to recommend amnesty for Selective Service Act offenders after World War II. Both Jimmy Carter and his predecessor, Gerald Ford, offered amnesty to Vietnam War–draft offenders.

Presidents have also granted pardons and commutations as “acts of mercy” to individuals—many anonymous—for a variety of federal offenses. Most recipients applied to the pardon attorney’s office within the Department of Justice and, months or years later, successfully received a pardon or sentence commutation. Recent examples include Olgen Williams, whom George W. Bush pardoned in 2002 for stealing money from the mail, and Charles Russell Cooper, a bootlegger pardoned by Bush in 2005. In 2017, Barack Obama pardoned Fred Elleston Hicks for illegal use of food stamps.

Not all presidents have followed these rationales, though. History also shows that presidents—particularly recent ones—have abused clemency for their own personal or political benefit. In 1992, George H. W. Bush pardoned several Iran-Contra figures, including former Reagan Defense Secretary Caspar Weinberger, effectively relieving Weinberger of the need to stand trial, a boon to Bush, who may have been called to testify. Bill Clinton offered clemency to members of the violent Puerto Rican nationalist organization FALN, a controversial decision that some said he made to gain Latino support for the political races of his wife and Vice President Al Gore. Right before he left office, Clinton pardoned Marc Rich, a fugitive from justice whose ex-wife was a large Clinton donor. George W. Bush commuted the sentence of I. Lewis “Scooter” Libby, sparing Vice President Dick Cheney’s former chief of staff a prison term. (Trump later pardoned Libby.) The presidents issued each of these clemency decisions after they were free from electoral consequences.

President Trump began by pardoning former Sheriff Joe Arpaio for criminal contempt of court, after Arpaio refused to stop police practices that amounted to racial profiling. Trump mentioned his intentions at a political rally before granting the pardon three days later. Since then, Trump hasn’t looked back. Along the way, he has favored a host of well-connected, famous, wealthy, or partisan figures for presidential mercy. To his credit, Trump has not hidden from the press, Congress, or other institutions when exercising clemency. He makes a decision and then takes the heat, often noting that his clemency grants counteract an “unfair” criminal-justice system.

Almost a year after Arpaio, Trump teased on Twitter a pardon for the conservative commentator Dinesh D’Souza, who had violated campaign-finance laws. He pardoned D’Souza that same day, and then made comments that shifted clemency speculation to the TV personality Martha Stewart and to Blagojevich.

Trump has also been swayed by celebrities. He commuted Alice Marie Johnson’s prison sentence after Kim Kardashian West visited the White House to advocate for her. He also pardoned the late African American boxer Jack Johnson in a grant pushed by the Rocky actor Sylvester Stallone.

The usual procedure for petitioning for a pardon or sentence commutation is far less showy than Trump’s current process. Typically, after waiting a minimum of five years, applicants go to the website of the pardon attorney; download, complete, and submit the appropriate form; and wait. After a lengthy review—sometimes years—the result is usually the same for everyone: a denial. George W. Bush granted only about 2 percent of petitions for a pardon or sentence commutation; Barack Obama granted 5.3 percent; and—as of February 7, 2020—Trump had granted less than 0.5 percent of clemency requests.

The former pardon attorney Margaret Love explains in her article “The Twilight of the Pardon Power” that one crucial reason so few clemency cases receive a positive recommendation is that “all but a handful of the individuals officially responsible for approving Justice Department clemency recommendations since 1983 have been former federal prosecutors.” In other words, because prosecutors in the pardon attorney’s office are reluctant to undo the work of their fellow prosecutors, presidents are rarely given a thumbs-up to pardon.

The traditional role of the pardon attorney has been basically abandoned by the Trump administration, after the office assisted presidents for more than a century. As The Washington Post reported earlier this month, “Former White House officials describe a freewheeling atmosphere in which staff members have fielded suggestions from Trump friends while sometimes throwing in their own recommendations.” Moreover, “all but five of the 24 people who have received clemency from Trump had a line into the White House or currency with his political base.”

Whether Trump is reaping significant personal benefits from his clemency decisions is unclear, but he does seem to enjoy the public’s reaction, even inviting two military clemency recipients onstage at a fundraiser late last year. With so many clemency grants to controversial figures like Arpaio, D’Souza, and now Blagojevich, he may be launching trial balloons to test public reaction to more serious pardons for his former associates, including Roger Stone, Paul Manafort, and Michael Flynn.

Along similar lines, Trump has twice tweeted about his understanding of the scope of the clemency power. In July 2017, he noted that he held “the complete power to pardon.” Roughly a year later, Trump tweeted that he had “the absolute right to PARDON myself.” Robert Mueller’s investigation and the impeachment trial are now both behind him. Still, it’s become apparent at this point in his presidency that Trump has used clemency to both gauge public opinion and stake out ground for a self-pardon, should he ever need one.