The Flynn Pardon Is a Despicable Use of an Awesome Power

The president’s abuse of his clemency power is an assault on one of the few truly humane aspects of the American legal system.

An illustration of praying hands and chains.
Getty / Katie Martin / The Atlantic

President Donald Trump’s announcement that he has pardoned Michael Flynn, his former national security adviser who twice pleaded guilty to lying to the FBI, is infuriating—and not merely because of the gross favoritism on display. What Trump has done once again is corrupt something that ought to be beyond corruption: the mercy that the most powerful person in the world can bestow upon those who are in chains.

I know the beauty of this power. I’ve seen it at work myself.

On a bright August day in 2016, I received a call from a number at the Department of Justice. The official on the other end told me that three of my law-school clinic’s clients had been granted commutations that would free them from life sentences on cocaine offenses, after each had served 25 years or more in prison. I was to call each of them immediately, and tell them the news.

First, I called Richard Van Winrow, one of the people caught up in the early days of the harsh mandatory crack laws of the 1980s. He was quiet, subdued; my own voice was hushed. Then I called Rudy Martinez, who had been in prison most of his life but had discovered his own intellect and ambitions through classes and borrowed books. I heard joy and disbelief in his voice. “Really?” he asked me.

Last was Ronald Blount, who had called me every Friday as his petition was pending. I had gone to his prison in Louisiana, leaned over a table, and prayed with him. He was called to the warden’s office, like the others, not knowing why.

When he answered the phone, I said simply, “God is good.”

There was a pause, breathing. And then he said, “All the time.”

The Trump administration has offered Americans many emotions, but very rarely has it created moments of joy shared across the country’s political divide. One of those rare moments came on June 6, 2018, the day that President Trump granted a commutation to Alice Marie Johnson, a grandmother serving a life sentence on a narcotics conviction. The nation watched as Johnson, clad in drab gray prison sweats, ran across an Alabama-prison road into the arms of her jubilant family. Yes, just the week before Trump had pardoned the Fox News darling Dinesh D’Souza, and that contrast did muddy one’s emotions. But nevertheless it was a brief, surprising, uplifting moment.

The pardon clause is what enabled that moment and others like it. This short clause is the wild thing of the United States Constitution: ancient, unchecked, unbalanced, and placed solely within the discretion of the president. In a criminal-justice system characterized by its inhumanity, the pardon power is capable of only one thing, something more spiritual than legal: mercy. Part of clemency’s elegance is the dialectic between the giver of mercy and the recipient, in which responsibility for a crime is accepted and contrition expressed, followed by mercy and reconciliation. Trump has upended this by taking the acceptance of responsibility and the reconciliation out of it; too often, clemency in his hands has just been a way to mark and reward terrible behavior he approves of, as with Sheriff Joe Arpaio’s biased policing.

Because of the depth and beauty of the pardon power, Trump’s abuse has been enraging both to those who love it and those who don’t. The difference lies in their reactions. When commentators such as the Harvard law professor Jack Goldsmith call for Congress to restrict the pardon power in reaction to Trump’s favoritism, they channel the anger of many—but theirs is a misguided call. The core problem with modern clemency has not been too much of it, but not enough. Right now, more than 13,000 petitions are pending, many of them having sat in limbo for years in a byzantine maze of bureaucracy, most of it coursing through the very same Department of Justice that sought the harsh sentences in the first place. The reform we need is a new, better process to evaluate petitions, so that more people, not fewer, can know this blessing.

Clemency has been a part of legal systems going back to the Code of Hammurabi. The ancient Jews had a tradition of granting freedom to a prisoner as part of the Passover festival. The Romans had a goddess of clemency, Clementia. I found out about her when I messed up an internet search and discovered Roman coins for sale that bore her name. The coins were surprisingly affordable—the Romans made so many of them—so I bought several and gave them to others who work to free people in prison. Some of those people, including the poet Reginald Dwayne Betts, carry them around in their pockets like I do, a tiny symbol of something old and good.

The Framers of the Constitution were wary of the power of kings, yet they included clemency in our founding document. As a Christian, I would love to say that the embrace of the pardon flowed from Christian belief, but that probably is true only for some of the Framers. Just as influential might have been the Bard. Educated Americans at the end of the 18th century lived in a cult of Shakespeare; busts of him were common in upper-class homes, and Thomas Jefferson and John Adams even made a joint pilgrimage to Stratford-upon-Avon in 1786. Shakespeare, in his plays, came back again and again to the idea of mercy. Measure for Measure is expressly about governmental pardoning, and the power of mercy is a central theme in many of Shakespeare’s other works, including The Tempest—a performance of which George Washington attended during the Constitutional Convention in Philadelphia.

In The Merchant of Venice (which Jefferson likely saw at least twice), Portia argues that Shylock should show mercy, both for himself and the recipient: “The quality of mercy is not strain’d / It droppeth as the gentle rain from heaven / Upon the place beneath; it is twice blest / It blesseth him that gives and him that takes.” That idea, that mercy is for both the giver and the recipient, came to mind when I was talking last month to Jason Hernandez, who had been sentenced to life in prison for selling crack and who wrote his own successful clemency petition to President Barack Obama before going on to guide others along the same path to freedom. “Redemption goes both ways,” he told me, “and clemency is a way for the government to seek forgiveness for the War on Drugs.”

George Washington granted some of the first U.S. pardons to participants in the Whiskey Rebellion—an uprising put down in 1794 by militiamen led by Washington himself. Defending his actions in his Seventh Address to Congress in 1795, Washington used language that we might not expect from a warrior: “It appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”

Washington was not alone in seeing this soulful value in the pardon power. He was a man of war who, as president, led a nation formed by law. Abraham Lincoln, conversely, was a man of law thrust into war—yet he saw the same deeply moving spirit in the exercise of clemency. He met personally in the White House with the families of those seeking pardons and overruled his generals to save some who were sentenced to death for desertion.

The perspective of those who have been in prison gives reform real urgency, and many of the leading advocates for change are those who themselves sought and received mercy. Johnson has borne criticism for speaking at Trump events while working within the administration for a broader use of the clemency power, but she remains undaunted. “Having received this grace keeps a passion inside me,” she told me.

I have been to the homes of several of those freed through President Obama’s clemency initiative, and saw the same thing in each: a kind of shrine around the letter they received from Obama informing them of their grant, a very human connection between the most powerful person in the world and one of the the least powerful. At the end of that letter, Obama told the man or woman granted freedom, “I believe in your ability to prove the doubters wrong. So good luck, and Godspeed.”

Restricting clemency would cut against something deep and ancient and right, something that flows within the words of Shakespeare and the last flickering light within the condemned. What would be imperiled is not only the power of the president, but the hopes of the least among us. Even after Trump’s desecration of the pardon power, it remains a way to make real the urgings of our better angels.

Dare we risk losing such a thing?