Sunday, December 20, 2020

The power to pardon

 By Roger Carlton

The purpose of a Presidential pardon is to restore civil rights and other privileges of full citizenship such as the right to carry a gun to felons convicted of federal offenses.

The power to pardon is provided in Article II Section 2 of the U..S. Constitution. The process is that an application must be made to the Office of the Pardon Attorney in the Department of Justice. There are criteria for the pardons to be recommended by this Office. The President has no mandate to follow those criteria.

 President Franklin Roosevelt issued 2,819 pardons during his four terms. President Barack Obama issued 212 pardons. Some pardons have been controversial like President Gerald Ford pardoning former President Richard Nixon. This columnist believes that a deal was brokered by Secretary of State Henry Kissinger in order to guarantee Nixon that no prosecution would occur if he resigned. If so, that was a fair trade-off that eventually cost Gerald Ford the next election. 

 We are now in unchartered territory regarding pardons. There is much speculation that President Trump will pardon himself, family members and other associates as a pre-emptory strike against prosecution after he is out of office. With the Justice Department in shambles in the waning days of the current term, this could happen. It would be a miscarriage of justice and violative of the Rule of Law upon which our democracy is based. 

When the Framers of the Constitution wrote the document that both grants and limits the powers of government, they specifically excluded the power of a President to grant a pardon to avoid impeachment. They foresaw a lot of things but did not predict that massive political cash contributions, for example, would be the justification for a pardon.

George Mason was one of the Framers. He worried that the power of the pardon might be abused. Simply stated he worried that "someone of sound character and high intelligence" might not always be elected to the highest office in the land. 

Mason argued that "the President ought not have the power of pardoning, because he may frequently pardon crimes that were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?" 

Another Framer, James Madison, argued that Presidential abuse could be met with impeachment. True, but that nuclear option has not worked in the 233 years since the Framers framed. 

The next few weeks will be very telling as we learn who will be pardoned. There will no doubt be a hue and a cry over many of the pardons. The journalistic investigations won't be done until after President Trump is out of office. Attorney General Barr is already leaking that he is considering resigning. He has many reasons to do that most of which were self-imposed. Let's be patient as the final weeks of President Trump's extraordinary term run down and hope that any damage done to the Rule of Law can be reversed in the next four years.




Elephant's Child said...

There is much about your political system I do not understand. Executive orders and Presidential Powers both strike me as very dangerous.
It has been reported here that President Trump may resign at the eleventh hour and promote Vice-President Pence to get around the self pardoning dilemma. I hope not. I really hope not.

Glenda Beall said...

EC, I am astounded at the power a president has and what he can do. I want the four branches of government to make decisions about the country and my future. Thanks for your comment.