Columnist William Newman: Trump’s unpardonable abuse of the pardon power

  • In this Dec. 12, 2020, file photo President Donald Trump walks on the South Lawn of the White House in Washington. AP

Published: 1/1/2021 9:41:45 AM

I believe I know something about pardons and commutations. My co-counsel, Buz Eisenberg of Ashfield, and I asked a president for a number of them. Details below.

The Constitution says, “The president ... shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment.”  The exclusion of state crimes and impeachment proceedings are the only limitations.

The founders disagreed about whether this was a good idea. George Mason opposed the pardon provision believing a president “might frequently pardon crimes which were advised by himself….” and by granting pardons “before indictment or conviction (could) stop inquiry and prevent detection.”

Alexander Hamilton, in contrast, favored the pardon provision, believing the president should be able to remedy injustices inflicted by the criminal system. James Madison sided with Hamilton, arguing that the potential for presidential abuse would be circumscribed by Congress’ power of impeachment. Mason was prescient, but Madison and Hamilton prevailed.

The first pardons worked more or less as the founders had envisioned. George Washington in 1795 pardoned two men who, having participated in the Whiskey Rebellion, the armed tax revolt in Pennsylvania, were convicted of treason and sentenced to hang.

Washington gave three reasons for pardoning John Mitchell and Philip Weigel. First, “[t]he misled have abandoned their errors.” Second, the pardons served the “public good” by unifying the country. And third, the pardons furthered the “moderation and tenderness which the national justice, dignity, and safety may permit.”

But unsullied idealism is not a prerequisite to a presidential pardon. Consider the case of George Burdick, the New York Herald’s city editor, who was pardoned by Woodrow Wilson in 1915. Wilson’s pardon was a legal ploy designed to extinguish the editor’s Fifth Amendment privilege and force him to reveal the newspaper’s sources to a grand jury. To Wilson’s chagrin, the Supreme Court ruled that although the president enjoyed the prerogative to issue the pardon, Burick, the recipient, retained the right to refuse it, which he did, and then continued to assert his privilege to not testify.

The Supreme Court has consistently affirmed the wide swath of the pardon power, ruling, for example, that a president can impose conditions on a pardon. And then there’s the Prohibition-era case of Philip Grossman.

After being served with a federal court order to cease-and-desist serving liquor at his store, Grossman served liquor there nonetheless. As a result, he was hauled back to court, found guilty of criminal contempt for violating the injunction and sentenced to a year in jail. Then president Calvin Coolidge pardoned him.

The case went to the Supreme Court, which ruled that the president’s interference with a judge’s authority to adjudicate a contempt of his court did not violate separation of powers. Of note: the decision stated that the Constitution conferred the unfettered pardon power “on the highest officer in the nation in the confidence that he will not abuse it.” Which brings us to Trump.

Trump has pardoned numerous lying political loyalists including Michael Flynn, Paul Manafort and Roger Stone; and corrupt convicted politicians including Republican Reps. Duncan Hunter (stealing); Chris Collins (securities fraud); Steve Stockman (23 felonies) and former Illinois governor Rod Blagojevich, who tried to bribe his way to the senate seat vacated when Barack Obama was elected president.

Although Trump is not the first president to bestow pardons motivated by personal or political considerations (Bush on Caspar Weinberger, Clinton on Marc Rich, Ford on Nixon, for example), Trump has reserved pardons and commutations mostly for his friends or friends of friends and those who have demonstrated their fealty to his authoritarianism.

Buz Eisenberg and I became involved with clemency, specifically commutation, petitions through the Clemency Project 2014 (CP 2014).(A pardon forgives the crime. A commutation, a subset of the pardon power, reduces the sentence. Pardons and commutations are types of clemency.) The plan, approved by President Obama, set forth criteria which if proven to the satisfaction of the Department of Justice’s Pardon Attorney would be apt to result in a commutation.

There was a high bar to meet: first prove that changes in the law meant that the sentence if imposed at the time of the petition would have been substantially shorter than the sentence being served; then demonstrate that the crime did not involve violence and was not gang related; argue convincingly, in addition, that the person — who must have served at least 10 years — didn’t have a disqualifying criminal history, and also make plain that he had a good institutional record and community ties and presented a good release plan.

There were 2,600 CP 2014 petitions. Obama granted 894, four of which were mine and Buz’s. In contrast to Obama, no moral compass or articulable standards guide Trump.

Another Trump failure regarding clemency is how few he’s granted — 94 in four years. In contrast, Obama during his last two years in office granted almost 1,800 petitions for clemency, most of them commutations. Today 14,000 clemency petitions remain unanswered by Trump.

It turns out that Mason, Hamilton and Madison all were right. A president can easily abuse the pardon power, but a president also can use that authority to promote the common good and ameliorate miscarriages of justice. Trump’s failure on both scores is unpardonable.

 

Bill Newman is a Northampton- based lawyer and radio show host  whose column is published the first Saturday of each month.


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