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The Most Unpardonable Presidential Power

Donald Trump is taking lame-duck pardons to obscene new levels, but he had a boost from his predecessors.

George Frey/Getty Images

President Donald Trump took a break from undermining American democracy last week for a symbolic errand of mercy: granting a ceremonial pardon for two turkeys, Corn and Cob, in a televised White House ceremony. (Though Trump technically “pardoned” only Corn, Cob will also enjoy retirement at Iowa State University.) The next day, Trump issued a pardon for a political ally who admitted to working as an undeclared foreign agent for Turkey.

Trump’s pardon of Michael Flynn, his former national security adviser, ends a nearly four-year-long legal battle between Flynn and the Justice Department. The retired general resigned in early 2017 amid reports that he lied to White House officials about his back-channel communications with Sergey Kislyak, the Russian ambassador to the United States, over sanctions imposed by the Obama administration for election meddling. Flynn later pleaded guilty to lying to the FBI about those communications as part of a deal to cooperate with then–Special Counsel Robert Mueller; Flynn then tried to backtrack on that deal throughout 2020 with the Trump administration’s support.

More importantly, the Flynn pardon also marks the beginning of the end of Trump’s war on the rule of law. For the past four years, the president has tried to turn the federal government’s immense powers of investigation and prosecution into his personal playthings, with a mixed record of success at best. Federal agents did not lock up Barack Obama or Joe Biden ahead of the November elections despite Trump’s reported wishes, for example, but the president still allegedly managed to obstruct justice in the Russia investigation. His pardons are a final act of revenge against a system he couldn’t control. What’s particularly galling is that the pardon power could be an effective tool for justice if wielded properly. But Trump instead seems set on building upon the ignominious history that surrounds a litany of controversial applications of the president’s “get out of jail free” card.

Recent news has been a pile-up of shady dealings. The president’s hapless legal fixer Rudy Giuliani is reportedly asking for a “preemptive pardon” from Trump for unspecified crimes in addition to his $20,000-a-day fee. CNN’s Katelyn Polantz reported Tuesday evening that the DOJ is now “investigating a potential crime related to funneling money to the White House or related political committee in exchange for a presidential pardon, according to court records unsealed Tuesday in federal court.” That story was followed only hours later by an account from The New York Times’ Maggie Haberman and Michael Schmidt, detailing how the president has, in recent days, sought counsel with advisers on “whether to grant pre-emptive pardons to his children, to his son-in-law and to ... Giuliani.” A host of other Trumpworld figures—Paul Manafort, Steve Bannon, Wayne LaPierre, Brad Parscale, and more—could also throw themselves at the mercy of the White House in the weeks to come.

Some of Trump’s misdeeds over the past four years have truly broken new ground for executive misconduct. But presidential pardons had a tarnished history long before Trump arrived on the scene. The ability to wipe away a person’s criminal wrongdoing at the federal level comes from a similar prerogative found in state governors, as well as in the British monarchy at the time of independence. Accordingly, of all the powers granted by the Constitution, pardons are perhaps the most sweeping and unilateral moves that any president can make. Neither Congress nor future presidents can reverse a pardon once given; the Supreme Court has also long disclaimed any power for the courts to review them.

Trump’s predecessors have not always used this power wisely. Even if you accept that Gerald Ford’s “full, free, and unconditional” pardon of Richard Nixon was granted in good faith, it arguably nourished a sense of elite impunity that’s still keenly felt on both sides of the aisle in Washington today. Subsequent presidents only contributed to the seaminess of the privilege. On Christmas Eve in 1992, lame-duck President George H.W. Bush pardoned former Secretary of Defense Caspar Weinberger and other indicted conspirators in the Iran-Contra scandal before they could go to trial. Bill Clinton doled out pardons to Democratic financiers, political allies, and even his own brother in the final moments of his presidency. George W. Bush commuted a White House aide’s conviction on charges that emerged from the Valerie Plame scandal. And even for pardons and commutations without the swamplike undertones, the well-heeled and well-connected seem to receive them at a disproportionate level compared to less affluent convicts with more convincing claims of being wronged by the judicial system.

Under Trump, all of these trends reached their natural conclusion. Some of his pardons went to deserving recipients like Alice Johnson and Pat Nolan, who have become outspoken advocates of criminal justice reform. But all too often they went to those who served Trump’s personal or political ends. He used acts of clemency to shield accused and convicted war criminals in the U.S. military from consequences. He rewarded political supporters like Joe Arpaio and Dinesh D’Souza by wiping away their charges and convictions. And he doled out clemency to figures like Rod Blagojevich, Scooter Libby, and Bernard Kerik in an implicit critique of the Justice Department and those who led it. Newspaper-mogul-turned-fraudster Conrad Black—f.k.a. the Right Honourable Lord Black of Crossharbour—was pardoned by Trump in 2019 as a transparent reward for authoring a library’s worth of fulsome praise for the president across a multitude of formats.

Perhaps his most serious ethical breaches occurred when it came to the Russia investigation. Earlier this year, in the wake of the Senate acquittal vote in his impeachment trial, Trump commuted a prison sentence that longtime ally Roger Stone had received for lying to Congress about the Trump campaign’s Russian contacts in 2016. It was an astoundingly corrupt act, even by Trump’s standards—rewarding an apparent co-conspirator in the investigation for taking criminal actions from which the president himself had benefited. Even then, Trump had foreshadowed his self-serving move: He and Giuliani all but promised a pardon for former campaign chairman Paul Manafort in 2018 if he didn’t cooperate with Mueller.

If Trump was a unique malefactor when it came to executive acts of mercy, these abuses of the pardon power could be dismissed as aberrant. But in this case, he is merely blazing a trail through a swamp traversed more subtly by many of his most recent predecessors in the Oval Office. When it comes to restorative justice, there is perhaps no stronger weapon in the presidential arsenal than the pardon power. But when it’s more famously used as a means of entrenching seedy injustices, what’s the point?

So what is to be done? It is too much to hope that the American people will always elect decent people to the presidency. Congressional Democrats proposed a bill earlier this year that would, among other things, explicitly include pardons as a “thing of value” under federal bribery laws. Any deeper changes, however, would require a constitutional amendment. Maybe the president should only be able to pardon individuals after their conviction on a specific offense. Maybe presidents shouldn’t be able to pardon people who committed crimes on their behalf. Maybe, just maybe, presidents shouldn’t be able to excuse crimes and punishments for the powerful and influential on a lame-duck whim.