Tuesday Talk*: Pardon Me

The New York Times reports that Trump plans to issue perhaps 100 pardons on this, his final day in office.

As President Trump enters the final hours of his term, he has been intently focused on who should benefit from his clemency power. Along with the White House counsel, Pat A. Cipollone, and advisers including Ivanka Trump and Jared Kushner, his daughter and son-in-law, Mr. Trump has spent days sifting through names and recommendations, assembling a list that officials say he intends to disclose on Tuesday, his last full day in office.

The size and precise composition of the list is still being determined, but it is likely to cover at least 60 pardons or commutations and perhaps more than 100. Already, Mr. Trump has been making calls to some of the recipients, people briefed about them said, and he held another meeting about the topic on Monday afternoon.

There is no indication that he plans to pardon himself, an exceptionally dubious notion as to its efficacy, but there are rumors that people are trying to buy his pardon, that friends and family might be included and, if nothing else, cronies who didn’t rat him out or write a book will be given their reward for their loyalty. The Pardon Clause is set forth in the Constitution, Article II, Section 2, Clause 1.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

So pardons. My position is fairly straightforward.

Mind you, this does not include the efficacy of a self-pardon, something no president has done, no court has endorsed and would seem to defy the text of the Constitution.

Others take very different views of the pardon power, many outraged at it being used for corrupt purposes and thus arguing that it must be constrained or, as one woman who speaks “as a lawyer,” contends:

Obviously, the twitter warning label that this twit is batshit crazy malfunctioned, to the detriment of a few folks who might assume that a lawyer would both be sufficiently competent not to twit something so flagrantly wrong or so shameless as to let her delusions fly into the wild. But I digress.

Granted, the president’s unfettered pardon power means that he can pardon undeserving people. It wouldn’t be the first time, for him or others. The worst that comes of such improvident use of power is that bad people get a free pass, which isn’t entirely uncommon in law. After all, when evidence of guilt of a heinous crime is suppressed, doesn’t a bad dude walk? It happens.

There are some ideas about limiting the pardon power, from requiring approval of Congress to restricting it during the lame duck period. But these ideas have consequences. While they would prevent the potential “corrupt” use of the power to buy the silence of co-conspirators, pay off loyalists and cronies, this could also prevent a president from pardoning a highly controversial person like Mumia Abu-Jamal. Is it worth the price?

It’s unknown whether there will be any controversial pardons coming today, although it would likely shock no one should it happen. Should the Pardon Power be constrained or should we trust the president, in whom a great many decisions of significance depend, to exercise the power without limitation?

Don’t just talk about your fix, but about the consequences of your fix. What will be gained? What will be lost? This isn’t just about Trump’s use of the power, but any other president who comes after him.

*Tuesday Talk rules apply.

23 thoughts on “Tuesday Talk*: Pardon Me

  1. Hal

    At the risk of being accused of blowing smoke up your shorts, Scott, you nailed it w/ this observation; “The solution isn’t to limit the Pardon Power, but elect better presidents.”

    1. Scott Spencer

      I was going to say something along those lines.

      Seems to me that the pardon power works fine. May not have been exactly what was intended in the beginning, but I don’t really see a problem with it.


  2. Jeffrey M Gamso

    Few people really object to the pres (any pres) pardoning cronies even for quasi (or fully) corrupt reasons — when they like the cronies. It’s the cronies they don’t like. And the pres they don’t like.

    That much said, the real problem with the pardon power is that it’s mostly too stingy. We have an awful lot of folks in prison for insane amounts of time for no good reason except guidelines and mandatory minimums and crimes that probably shouldn’t be. And we have an awful lot of folks who have trouble getting their lives on track because of that damn criminal record interfering with licenses and jobs and housing and . . . .

    And what’s true of pardon’s & the like in the federal system is true in many (most? all?) state systems.

  3. KeyserSoze

    I would make no changes.

    I think we have an insane mis-incarcertion problem in this country that the Presidential pardon power could be used to correct. Real life has no solutions, only trade offs and this seems to be a fairly decent one.

    1. Skink

      As every judge and lawyer in this here Hotel knows well, pardon and impeachment ain’t the same thing. You don’t and we know you don’t know what you’re talking about. In fact, we don’t want to hear your no-knowledge, nutty junk. You’re a dope. You’d get a hat, but supplies are short.

      1. Kirk A Taylor

        Where in my comment did I mention impeachment? Hell, where did Scott mention impeachment? You talk a great game about reading comprehension and accurate writing yet seem to miss that my point is a quite a generic one about two way street politization in general. Everything has become weaponized in our hyper partisan environment.

        That said. I accept Scott being a dick when I comment because it is his back yard and he is usually right.

        You can suck a dick, especially since you apparently either can’t read or have the power of ASSumption in the third degree.

        1. Skink

          Your’re dumber than most. Pardon power has nothing to do with “investigation and prosecution”. Those items are the usual arguments against impeachment, but they are clearly wrong in application. Those are the arguments of those that know nothing of how the law or the Constitution work.

          1. Kirk A Taylor

            Are you serious? I feel like you are one of those commenters who get trashed here for not reading or thinking about what is written.

            I never claimed to know anything about the law, nor being a lawyer. My comment, on a Tuesday, was about politics, cronyism and weaponized prosecution responded to by someone with a fairly unrestrained power of pardon, along with a politician’s lack of morals.

            Trump believes his cronies were unfairly prosecuted for partisan reasons and has responded with pardons. Neither side is completely right, but as long as investigations, charges and prosecutions are used (or appear to be used) for political gain, pardons will be used as a political response.

            And quit bringing up impeachment. For someone slinging accusations of stupidity you sure are thick. You are the only one talking about impeachment and it is making you look even dumber than your first comment. Seriously. If you want to argue, at least argue with what has been stated and not some fantasy argument you think I’m making. I know being an asshole to non-lawyers is a game here but right now you are sucking at it.

      2. Kirk A Taylor

        For people who actually care and can read…I’ll elaborate at risk of more douchiness.

        Not to defend Trump, but his family, friends and cronies have been investigated and prosecuted, many for things richly deserved, but to pretend that there is no political motivation for these would be the height of obliviousness.

        What would you expect a typical, morals deficient politician with the unfettered power of pardon to do in response?

        This is a non-partisan game played by both sides and is only going to get worse.

  4. Richard Parker

    Trump has achieved the supreme accomplishment of being both his own Nicholas II and his own Rasputin.

    (Would history have turned out different if the first child of Nicholas had been a non-hemophiliac son?)

  5. Jake

    The Pardon Power should not be a ‘magical get out of jail free card’ for the person who wields it, but for those who a truly deserving of clemency.

    That said, I do not think the Pardon Power should be changed and echo some other comments. If anything, its use should be expanded dramatically.

    However, and since it seems to me you’ve conflated whatever some random tweeter thinks about investigating corruption and whether or not Congress should change the Pardon Power, I support the notion of investigation and, if necessary, criminal litigation connected to its use.

    If, for instance, an Executive Office (regardless of the occupant or how contumacious they might be) wields the Pardon Power to cover up their own crimes then they should face consequences. It seems to me, conspiracy and obstruction of justice are crimes, regardless of whether or not an enumerated power was used as an instrument of the crime.

    Would knowledge of potential consequences for corrupt use of the Pardon Power dissuade an executive office holder from using it correctly? I seriously doubt it. If so, government officials would have seized up and ceased to function long ago, as there is no statute suggesting the opposite is true. All people, regardless of office, operate in a world where there is no guarantee that we might not one day be charged with a crime we did not commit. This is a fact of life and the very purpose of courts and lawyers.

  6. Nigel Declan

    While the power of the executive branch has been extended significantly, whether constitutionally or otherwise, it strikes me as fair that the President gets to exercise powers explicitly granted to him by the Constitution. And part of the deal for electing someone as President is that they get to make decisions that belong to the President, including pardons. As much as some parts of the Twitterati might want Congress or bureaucrats to have the ability to block certain pardons, they fail to recognize that at some point in the future, the very people they detest may be the ones manning the veto lever, blocking a pardon that the braying progressive mob vehemently supports.

  7. Grant

    My heuristic: Never take legal advice from an public op-ed amplified in a public feed that contains typos. Especially if it is advocating a precedent-setting outcome.

    1. LocoYokel

      I’m actually interested in seeing her precedent-setting litigation of an enumerated power and the court-tv episodes. I have popcorn futures to sell. And I’d like to see what the spread is from a bookie in Nevada, mamma needs a new car.

  8. Earl Wertheimer

    “elect better presidents” If only…

    Instead of the president wielding this power, let’s open it up to public opinion…
    If a proposed pardon gets more than 3 million ( 1% ) votes for and less than 500,000 votes against, it passes…

    So much public policy is already decided this way, why not one more thing?
    To make it even simpler, we could replace votes with tweets or likes or online votes.

    For rich people, a payment scale would be established for various types of crimes. The church would get a small kickback. It was originally their idea and they need the money…

    1. LocoYokel

      That might actually be a worse idea than letting Trump run naked through the streets of DC screaming “VOTER FRAUD!!11!!1!” at the top of his lungs.

  9. Jim Cline

    This is off topic but maybe since it’s Tuesday? I take comfort in the realization that in the future any headline that would normally begin with Trump followed by whatever he has done or said can now begin with Florida man…..

  10. Chuck

    “…both be sufficiently competent not to twit something so flagrantly wrong or so shameless as to let her delusions fly into the wild.”

    If it is good enough for the POTUS, why not a bubble-head? Tone from the top an all that bull$#&!

    Get in the game man. If I think it, it is so.

    BTW “better Presidents”?- I pray the bar cannot be lowered any further.

  11. losingtrader

    You use the term “batshit crazy” quite often. Any chance you were in a Wuhan “wet market” about 15 months ago?

Comments are closed.