Should the U.S. get rid of presidential pardons? | The Tylt
Should the U.S. get rid of presidential pardons?
Presidents enjoy almost entirely unfettered abilities to pardon anyone who has been charged or accused of federal crimes. As Vox explains:
The Supreme Court actually ruled on the pardon power in the 1866 case of Ex parte Garland. That decision concerned a law Congress passed disbarring former members of the Confederate government, which was challenged by former Confederate Sen. Augustus Hill Garland.
...“By the second section of the second article of the Constitution, power is given to the President ‘to grant reprieves and pardons for offences against the United States, except in cases of impeachment,’” Justice Stephen Field wrote. “With that exception the power is unlimited. It extends to every offence, and is intended to relieve the party who may have committed it or who may be charged with its commission, from all the punishments of every description that the law, at the time of the pardon, imposes.”
A prime example of this use of the presidential pardon is Gerald Ford's preemptive pardoning of Richard Nixon upon taking office. Nixon had not been charged with any crime and would likely not be charged for several more months. Ford felt it important for the nation to move past the Watergate Scandal and pardoned Nixon of all crimes he may have committed.
Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.
Ford sets a potentially dangerous precedent in our current era. As Vox explains, it's entirely possible for President Trump to preemptively pardon any of his aides.
Trump could, similarly, offer any number of his aides “a full, free, and absolute pardon … for all offenses against the United States … [they] committed or may have committed or taken part in during the period from January 1, 2016 through July 21, 2017,” or earlier or later, as he sees fit.
These aides could then refuse to answer any questions about potential Russian collusion.
Just because a presidential pardon may be unjust, it still is not criminal. Vox explains if the the president pardoned one of his associates, like Paul Manafort, in an attempt to encourage an aide to remain quiet on potential collusion, that is still within his right.
The reason to dangle a pardon before Paul Manafort is obvious: He’s clearly guilty of serious financial crimes, in major legal trouble because of his guilt, and is also in a position to offer damaging testimony against members of Trump’s inner circle. Trump, however, is in a position to get Manafort off the hook legally if Manafort agrees to protect him, his family, and his associates.
That would be a straightforward transaction, and the US Constitution is clear that Trump has the legal authority to do it.
Or, indeed, to do any kind of pardoning he wants. If a deranged Trump fan were to get a gun and massacre Mueller’s entire team on the streets of Washington, for example, Trump would have the unquestionable legal authority to pardon the killer. DC is not a state, so murder is a federal crime there — and Trump can pardon anyone for any violation of federal law for any reason.
But there is no legitimate purpose for pardoning Manafort, who is simply guilty of crimes and facing the normal punishment for them laid out in law. There are no mitigating circumstances here or a reasonable argument for showing unusual leniency. There’s simply the fact that Manafort is in a position to do Trump a favor, so Trump might do him a favor. This is not a legitimate use of the pardon power, any more than selectively shielding associates from legal scrutiny is a legitimate use of the power to fire executive branch appointees.
Trump is considering pardons for a handful of former servicemen who have been accused or convicted of war crimes ranging from shooting unarmed civilians to killing prisoners. Many former military personnel have voiced their concerns about the possible repercussions such pardons would have. Per NBC News:
On CNN's "State of the Union," Sen. Joni Ernst, R-Iowa, expressed a stronger take on the possibility, saying Trump needs "to be very careful" regarding such pardons.
"But I would say that, if our soldiers, sailors, airmen, Marines, if they are accused and found guilty of war crimes, we need to be very careful in that, because it is not OK to perpetrate war crimes," she said. "It is not OK."
Ernst, an Iraq War veteran, added that "we need our young men and women in uniform to understand that we operate under a code of ethics."
"Even though they may serve in armed services, they still are human beings," she said. "And we do have a code that we have to operate under. So, I would just advise the president to be very careful, scrutinize, of course, each case individually, and, if it's warranted, grant a pardon. If it is not, and someone has committed a war crime, then a sentence should be served."
By using his unlimited pardon power, President Trump could be seen as sanctioning the behavior of these soldiers, which could have potentially dangerous effects that ripple through the military.
However, if the president does pardon his aides, they could lose their Fifth Amendment right against self-incrimination. Vox explains:
If Trump does pardon people, those people could then be asked to testify under oath, either by Mueller’s team or by Congress. Pre-pardon, they could have pleaded the Fifth, refusing to answer on certain issues on the grounds that they might incriminate themselves. But if they’ve been pardoned already for those matters, they’re no longer at risk of incriminating themselves — so they’d have to testify truthfully, or risk new charges for contempt or lying under oath.
You see the problem: If somebody takes a pardon to avoid telling prosecutors what they know about Trump, that person could later be compelled to ... tell prosecutors what they know about Trump.
The loss of the ability to plead the Fifth could provide a check to Trump's pardoning powers.
Additionally, presidential pardons only extend as far as federal crimes. A person can still be charged and convicted of crimes by individual states. New York state has set itself up as an unofficial check on president pardoning power.
Before his resignation after four women accused him of physical abuse, New York Attorney General Eric Schneiderman wrote a letter to Gov. Andrew Cuomo arguing that trying someone for state crimes, when they have been pardoned by the president for similar federal crimes, does not constitute double jeopardy. Per the Atlantic:
He acknowledges the importance of protections, but writes that “recent reports indicate that the President may be considering issuing pardons that may impede criminal investigations.” He continues, “New York’s statutory protections could result in the unintended and unjust consequence of insulating someone pardoned for serious federal crimes from subsequent prosecution for state crimes—even if that person was never tried or convicted in federal court, and never served a single day in federal prison.”
...“Simply put, a defendant pardoned by the President for a serious federal crime could be freed from all accountability under federal and state criminal law, even though the President has no authority under the U.S. Constitution to pardon state crimes,” Schneiderman wrote.
Therefore there are some checks on this particular presidential power.
Presidents can also use their pardon power in a much more straightforward way—to right longstanding injustices. President Trump granted a posthumous pardon to heavyweight boxer Jack Johnson, who was convicted of violating a racist law at the height of his talent and dominance in the sport. The New York Times reports many members of Johnson's family praised the president's actions. Per the New York Times:
[Linda] Haywood thanked the president as well, saying the pardon was a long time coming.
“I am overwhelmed,” she said, adding that her family had been “deeply shamed that my uncle went to prison” and regretted that older relatives had not lived to see this day.
“I appreciate you rewriting history,” Ms. Haywood said. “My family can go forward knowing the pain and the shame has been replaced.”
Some criticized the president's pardon of Johnson as a political stunt meant to distract from his own checkered track record on racial issues.