“…He (the President) shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” – Article 2, Section 2, Constitution of the United States
The Sovereign
When President Trump says he has “the power of Article II,” that lets him do almost anything, it sounds like he is claiming to be a king. But there is one particular area where he is right. The United States Constitution grants the President the ultimate sovereign power of reprieve and pardon. He can, without check or balance from any other branch of the government, pardon anyone from a Federal crime, or forgive a penalty.
The “pardon power” was added into the Constitution by the Founding Fathers because they felt there needed to be a way to address inevitable injustices that might occur in the Court system. They also knew there might be times when, for the good of the nation, it would be necessary to forgive offenses. And there was, of course, the ultimate check of Congressional impeachment and removal, should a President take the pardon power too far
Forgive and Move On
George Washington used the pardon first to forgive the farmers of Western Pennsylvania for the Whiskey Rebellion. The Federal government issued a tax on whiskey production, one of the main sources of income for the frontier settlers. The farmers rebelled, refused to pay the tax and organized an armed insurrection. President Washington led an army west to put down the rebellion.
The rebels dissolved. There was no battle, but twenty farmers were eventually arrested. With the rebellion put down, and the taxation power of the Federal government asserted, there was no need for further punishment. Washington pardoned the remaining offenders.
John Adams pardoned Revolutionary War deserters. Andrew Johnson pardoned Confederate veterans of the Civil War. Jimmy Carter pardoned draft dodgers and deserters from Vietnam. Gerald Ford pardoned former President Richard Nixon. The pardon power was used to resolve national issues so the nation could move forward. To quote President Ford after Watergate, it allowed the nation to move on, its “…long national nightmare” over.
Injustice?
But the pardon power has also been used to “right” individual injustices, some with much controversy. President HW Bush pardoned former Defense Secretary Casper Weinberger, convicted of offenses in the Iran-Contra Affair. Bill Clinton pardoned Marc Rich, a convicted tax evader whose wife donated to the Clinton library. And President Warren Harding pardoned socialist Eugene Debs, convicted of violating the “treasonous speech” laws of World War I, and then invited him to drop by the White House.
So the President has unlimited powers of pardon and reprieve.
Like Trump
Yesterday President Donald Trump pardoned or commuted the sentences of eleven Americans. It seems like this President takes these actions almost on a whim. But Mr. Trump chooses at least some of his pardon recipients by looking in the mirror. If they have done something that Trump himself might have done; their chances of getting Presidential “grace” seems to be heightened. Even more if he knows them from TV.
The List
- Former Democratic Governor Rob Blagojevich was convicted of trying to sell a US Senate seat to the highest bidder. After Barack Obama was elected President, leaving his Illinois seat vacant, the Governor had the power to fill it. Blagojevich openly placed the seat up to the highest bidder, and was ultimately sentenced to fourteen years in Federal prison. It probably helped Blagojevich’s case that he had been a contestant on The Apprentice, and that the Federal Prosecutor who convicted him is now former FBI Director James Comey’s attorney.
- Former NFL football team owner Eddie DeBartolo was convicted of trying to bribe Louisiana’s governor for a casino license. Though he never went to prison, he was fined $1 million, and banned from the NFL.
- Former New York City Police Commissioner and close associate of Rudy Giuliani, Bernie Kerik pled guilty to eight counts of tax evasion and lying to White House officials while being vetted for Secretary of Homeland Security.
- Michael Milken was convicted of securities fraud and conspiracy as the “junk bond king” of Wall Street in the 1980’s.
- Paul Pogue, a Texas construction executive, was convicted of income tax evasion.
- David Safarin, a top government procurement official, was convicted of obstruction of justice and making false statements in the Abramoff Congressional scandal (NYT).
Selling government influence, lying to Federal officials, evading taxes, bribing government officials: all are possible charges against a President who is going to extremes to protect his past business practices. Perhaps he is softening the American people up, trying to change their attitude about what is “wrong” or “right” or “just doing business”. This all from a President who wonders why American businesses are put at a “disadvantage” by being prohibited from bribing foreign officials (The Hill).
Get Ready
Or, the President is just preparing the ground for pardons that protect him. Roger Stone will be sentenced next week. Whether Judge Jackson accepts the current Federal recommendation of three to four years, or the original seven to nine years, or makes some other decision, Stone will likely join his old friend Paul Manafort in prison. And Mike Flynn has yet to appear for sentencing, facing a judge who asked why his actions weren’t treason.
Stone, Manafort, and Flynn all are directly involved in the Trump campaigns interactions with the Russians during the 2016 campaign. And they are all getting older, and want out or to avoid jail, NOW. If the President won’t pardon them, Federal prosecutors may entice them to turn “state’s evidence” against him.
Don’t be surprised if Mr. Trump decides that the “injustice” of the “Russia hoax” investigation has gone far enough, and pardons all three. Who’s going to stop him, Congress? The US Senate has already ruled: the President can do anything, and it’s OK.
