The Pardon Power and The Value of Mercy

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.

Even those who would be expected to possess a working grasp of law and governance hopped on the “pardon power is bad” train.

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?

Too blunt?

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.

10 thoughts on “The Pardon Power and The Value of Mercy

  1. Chris Halkides

    After the Court of Appeal inexplicably refused to grant relief to the Birmingham Six in 1988, conservative MP Sir John Farr suggested that they be pardoned, which would have side-stepped the courts. The six were released in 1991.

  2. Bear

    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…

    —- Shakespeare (Portia, The Merchant of Venice, Act-IV, Scene-I, Lines 173-195)

  3. Ray

    Maybe the solution is to elect a president who will be presidential, and when they show themselves for what they really are they don’t get reelected–or else are gone after their second term. When power abuses power, it’s a warning to the electorate that their choices every four years are important. If the electorate makes a bad choice, then fix it in four years. Which looks like it just happened.

    You don’t change the constitution because of a Trump. That’s how we really end up becoming a banana republic.

    Senator Murphy is a lawyer and should know better. Just another politician looking for attention and relevance. What a disappointment.

    1. norahc

      The older I get and the more I learn here, the less inclined I am to change the Constitution. It’s not that I think the Founding Fathers created a flawless document to govern us, it is because I look around at our society and realize we can’t be trusted not to screw it up.

  4. B. McLeod

    The outrage is more partisan than rational. Yes, Trump was rewarding cronies for loyalty, but the larger reality is none of these people would have ever been prosecuted had they steered clear of politics. The prosecutions were partisan too. Also, the bullshit of creating a “process-based” criminal offense by maneuvering targets into “lying to a federal agent” fairly cries out to be knocked in the head.

  5. C. P. Browne

    I noticed there’s no mention of the Blackwater killers also being pardoned. Neither was there mention of these men not being railroaded like George Stinney Jr., but rather given fair and just trials for their heinous deeds before being found guilty of murdering civilians – among them women and children. Certainly worse than being ‘plain old thieves’ by any measure, yet they were released from prison as if their prosecution was; how did you put it? Government overreach and abuse?

    That’s quite a large omission when you’re making the case that Trump’s disgusting abuse of the pardon power granted to his office (which he’s under investigation for even now for offering to the highest bidder, I might add) is just one of those little oopsies we have to grin and bear with because our system isn’t perfect. Say, he could still launch those missiles as a final ‘fuck you’ to the country that didn’t re-elect him like he wanted. I can’t wait to hear your mealy-mouthed justification for that.


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