Donald Trump’s pardoning spree reveals a historic constitutional flaw

The US president has made clear that pardon power undermines equal justice under the law. 

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In his final hours in office, Donald Trump is expected to go on a pardoning spree and has even reportedly discussed pardoning himself and his adult children.

The president has already used his office to pardon associates such as Roger Stone, who was indicted for lying to Congress about what he knew regarding Russian efforts against Hillary Clinton; Charles Kushner, his son-in-law’s father, who served time in prison for tax evasion and witness tampering; and four former guards for Blackwater, a private military contractor, who were convicted of killing 14 Iraqi civilians.

The power to pardon – to completely clear someone of the penalty involved in committing a federal crime – has belonged to the president for as long as there has been a constitution. It’s there in section two of Article Two: “[The president] shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”

“Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed,” wrote Alexander Hamilton, one of America’s founding fathers. “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favour of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” There are times, he argued, when a group of men might want to avoid clemency, encouraging one another into “an act of obduracy”, whereas one man might be more likely to be merciful.

Hamilton was arguing that Americans should let their president enact the principle of mercy. In practice, however, that mercy has been unevenly applied.

Early on, pardons were granted to Civil War rebels to demonstrate that the union could come back together. George Washington pardoned the organisers of the Whiskey Rebellion; Thomas Jefferson pardoned everyone convicted under the Sedition Act, which had made it illegal to defame the government. Two centuries later, Jimmy Carter granted pardons to all those who had evaded the draft in the Vietnam War.

But so, too, were pardons granted by Andrew Johnson to former Confederates, including high-ranking Confederate officials. The men who had organised a war against the country to protect the right to own slaves would not face consequences for their actions. In 1974, Gerald Ford granted an unconditional pardon to Richard Nixon a month after the latter resigned for any offences he may have committed while in office.

[See also: Donald Trump's enablers must share responsibility for Capitol chaos]

This has been America’s largely unquestioned position on pardons. But as with so much over the last four years, the vulgarity with which Trump makes the case for what has always been – the hypocrisy and transactional nature of US foreign policy, to take one example – has forced those of us who had not previously questioned long-standing practice to begin to ask those questions: why does this practice exist? Is it working as intended? 

Regardless of what the pardon was meant to do in theory, in practice it applies favouritism, not mercy. It applies a reprieve only to those cases with which the president is familiar or in which he takes particular interest.

If the punishment for breaking a law is too harsh, then that law should be changed, and the system behind that law reformed. I don’t disagree with Abraham Lincoln who, in 1862, refused to authorise the execution of Dakota men who had tried to drive white settlers from Native American lands, but I do disagree with the idea that it was a one-off, rather than an attempt to grapple with Native American land rights (and the hanging of 38 men, who were not pardoned). I don’t disagree with Carter for pardoning those who dodged the draft, but I disagree that this pardoning depended on Carter’s whims. To pardon one man may be merciful, but to change a system to ensure more people are less reliant on a president’s mercy is justice.

The other reason to stop pardons falling to the mercy of a president is that not all presidents are merciful – as we are now unfortunately being reminded. Some are vengeful, some are corrupt, some use presidential pardons to reward loyalists (as did Trump in the case of Stone, his former campaign manager Paul Manafort, and his family members). There should not be one form of justice for the public and another for people the president happens to know – this isn’t mercy, it’s a double standard.

There is rule of law or there isn’t. And, pardon my saying so, but Trump has made clear that pardon power is a workaround for equal justice under the law.

[See also: Why Joe Biden could struggle to restore global trust in the US]

Emily Tamkin is the New Statesman’s US editor. 

She co-hosts our weekly global affairs podcast, World Review

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