For some, the idea of showing mercy to the likes of Paul Manafort or Roger Stone is more than they can take. These are venal men who propped up an even more awful man, and for that they deserve nothing but hatred, pain and punishment. That they also committed crimes just proves it, but the truth is that they are not hated for the crimes they committed, but for their connection to Trump.
When Trump pardoned them, there was no question but that it was terrible. At the most superficial level, they were unworthy of mercy, receiving “crony pardons,” which is wrong as an abuse of power for personal reasons. Slightly deeper, it was a quid pro quo for keeping their mouth shut about Trump’s conduct, their loyalty to their patron, thus rewarding them for their role in corruption and concealing it.
This, unsurprisingly, gave rise to the simplistic but obvious reaction.
Why isn’t there more discussion of how the presidential pardon power is obviously a bad idea
— Rosie Gray (@RosieGray) December 24, 2020
Even those who would be expected to possess a working grasp of law and governance hopped on the “pardon power is bad” train.
Once one party allows the pardon power to become a tool of criminal enterprise, its danger to democracy outweighs its utility as an instrument of justice.
It’s time to remove the pardon power from the Constitution.
— Chris Murphy (@ChrisMurphyCT) December 24, 2020
It takes little effort to explain where the pardon fits within our constitutional structure. It’s the safety valve for judicial excesses, whether of its own accord or thrust upon it by Congress by such weapons as mandatory minimums. It’s a stop gap for unjust outcomes. It’s the last chance for correction of wrongs, for mercy. It’s a component in our system of checks and balances, putting the power in the hands of our chief executive to, in the final resort, relieve the machinations of the other branches when things have gone awry and a wrong needs to be corrected. Without the pardon power, there would be no authority to undo a wrong.
But it can be abused by a corrupt president? That’s not a flaw of the pardon power, but of the president. The president possesses vast powers that can be used for good or evil. It’s one of the reasons our election of a president is such an important decision, and why we should vote wisely.
Unfortunately, our choices are constrained by our acceptance of a duopoly of candidates to be taken seriously, leaving us with a choice of lesser evils who are put forward as the best we can and the only serious candidates for whom to vote. One of them will have their hands on the nuclear football, like it or not. They will also have the authority to exercise the pardon power, whether for good or evil. This is the nature of the office and if we don’t trust a president to exercise the authority of the office, we would do well to elect someone else.
That power can be abused should surprise no one. Nor should it surprise anyone that even presidents deemed not entirely awful have used the power in ways that people found improper, Clinton’s pardoning Marc Rich, being an obvious example. It was neither as bad nor pervasive as how the power is being used now, but it was still an improper use of the power.
This is where cool new phrases are often thrown against the wall to catch the interest of those inclined to movement by slogan. We need guardrails, we’re informed, which keep the car on the road and prevent it from careening off the cliff into the abyss below. Guardrails. That’s what we need. That will prevent this from happening again.
One of the most painful lessons that comes with experience is that there are more scenarios in heaven and earth than our mere mortal imaginations can conceive. We see what appears to be a problem and come up with ways to fix the problem we see. What if we amended the Constitution to preclude a president from issuing pardons during the lame duck period of his presidency? What about the last six months of a term?
What about limiting the power so that those connected to the president, those who could implicate the president in misconduct, could not be pardoned? But how would we know, prove, such a thing, as it puts the assumption of guilt ahead of the trial? And what about people convicted by a political enemy of the president who uses his authority to damage a beloved and respected president? Reverse the assumptions here and consider the ability of a president to protect his staff and advisers from undo influence by malevolent opponents?
Very few “solutions” offer no risk of abuse in the wrong hands. Indeed, very few offer no peril even when controlled by the well-intended. Sometimes bad things happen to good people. Sometimes bad people find a way to use benign authority in bad ways. The pardon power is not a tool for evil, but a critical piece of a constitutional puzzle to serve as the final safety valve for governmental overreach and abuse. It can be the last way to correct an error, the final hope of not putting an innocent person to death. And you would eliminate this power because you hate the way Trump used it to pardon Crazy Joe Arpaio or Jared’s daddy?
The New York Times has a surprisingly okay editorial which, after needless explanation of why Trump’s use of the pardon power was awful, goes on to proffer mechanisms to make the use of the power better. Take the vetting process out of the hands of the Department of Justice, the nice folks who put people in prison in the first place, and create a commission of people inclined to seek out government excesses and correct them. Prawf Mark Osler has given this a lot of serious thought and has some sound ideas of how to make the process work. NYU law professor Rachel Barkow, I might add, would be a brilliant choice to lead this effort.
The solution isn’t for presidents to pardon fewer people; it’s to pardon more, with more consideration and more consistency.
No, this won’t eliminate the potential of a president exercising the pardon power in nefarious ways, whether to benefit his cronies or to pay back his co-conspirators for keeping their yaps shut and not ratting him out. But it will serve thousands, even more, people by providing the mercy that our misbegotten belief that being excessively harsh would someone change the fundamentals of human nature and bring about an end to crime.
The problem with presidents abusing the pardon power has always been within our control by not electing bad candidates to office. But even when it happens, it’s the price of having an imperfect system. It’s a high price, but any attempt to tweak the system to eliminate it will result in a system that won’t be able to serve its purpose when it’s needed. No matter how steep the cost of Trump’s pardon may seem at this moment, the value of mercy is greater.