In one of the latest DJT dramas, we learn that the President reportedly believes he has the power to pardon himself for any federal crimes he might have committed (during and prior to his presidency). Legal commentators have their hands full analyzing Trump’s other suspect exercises of and plans for the pardon power-for close relatives and for people from whom he anticipates his brand of loyalty (a.k.a. Omerta). But the question of self-pardon seems to stand alone. The power to pardon people for their crimes almost necessarily assumes that the pardoner and the one to be pardoned (the “pardonee”) are two separate individuals. In this column, I discuss why and what the implications are.
The Assumption Embedded in Any Pardon Power
The power to pardon people for criminal actions carries potential risks. Our criminal justice system (federal, in this case) operates as a means of protecting people from crime and of giving voice to the community’s outrage when one of its members violates the interests of others by committing a criminal offense. Among its various functions, the criminal justice system satisfies what appears to be a very widely shared desire to exact revenge against someone who has wronged you or your community, however defined. A system of private retribution and vigilantism, which emerges in the absence of a formal and relatively reliable justice system, could undermine the orderly functioning of society, as the author of The Better Angels of Our Nature, Steven Pinker, effectively demonstrates regarding honor-oriented cultures in various parts of the world and the southern United States. The more honor-oriented a culture, the more private violence one finds (much of which is an excessive or erroneous response to other violence). When the government replaces the victims’ family, the process becomes more accurate and proportionate. The most violent parts of our country as well as of the globe tend to be places where individuals and families have refused to fully surrender their retributive impulses to the government.
Even when we have a functioning criminal justice system, there will be people who take it upon themselves to punish those who have hurt them. But if the system consistently fails victims, then many more will take back the delegated role. It is accordingly crucial that the government perform its justice-seeking effectively. If it does not do so, then the adage “no justice, no peace” will prove an accurate prediction. If the criminal justice system were to suddenly stop investigating, prosecuting, and punishing people who have violated the rules of the social order, then the consequences could be dire.
Occasionally, of course, the government (or the head of the executive branch) can extend a pardon to a particular individual or group of individuals. The reasons for doing so include political rapprochement; a change in character or behavior by the pardonee that makes what was originally a fair sentence now seem excessive; and the recognition that even at the time of the offense the pardonee acted in response to life experiences that not one of us could say would have left us capable of directing our own conduct down the straight and narrow. To illustrate the last category, let me describe the life of a woman whose circumstances should provoke the kind of mercy and empathy that properly characterizes a legitimate use of the pardon power.
The Trump administration earlier this year resumed federal executions after a nearly two-decade hiatus. More recently, the pace of these executions has stepped up, as the sand in the Trump presidential hourglass runs down. One of the people awaiting death at the hands of the federal government is Lisa Montgomery, the only woman facing federal execution. Convicted of murder, Montgomery committed an ugly crime, strangling a young pregnant woman with whom Montgomery had initiated a false friendship on social media. Montgomery also removed the fetus from the woman’s body, perhaps in the hopes of keeping it herself. Yet a brief look at Montgomery’s background might lead one to grant her a pardon, notwithstanding her horrifying offense. Various members of her family abused her repeatedly, brutally, sexually, and relentlessly during her childhood and beyond, when she married only to find herself abused again.
The extremity, violence, and frequency of the abuse Montgomery suffered might lead us to say that we simply do not know what we or those we currently trust would do if subjected to the kind of prolonged torture that she experienced. We might see our way to pardoning this woman because her life has been so utterly wretched that she may be entitled to the compassion and mercy that has never before graced her life.
Pardoning, Empathy, and a Theory of Mind
When the government pardons a person who has committed a crime, it expresses empathy for that individual, a sense of being able to feel the other individual’s pain. In punishing people who hurt others, the government also expresses empathy but for the victims of crime rather than for its perpetrators. Most of the time, the criminal justice system facilitates the second kind of empathy, particularly with the ascendence of the victims’ rights movement and corresponding developments. To exercise the pardon power, a government official should ideally be able to feel the pain of both victims and perpetrators and thereby determine whether mercy is appropriate in a particular case.
The centrality of these emotional capacities does not bode well for President Trump’s wise exercise of the pardon power. According to nearly every mental health professional who has written on the subject, President Trump suffers from Narcissistic Personality Disorder (NPD). In truth, one need not have a degree in counseling or psychology to come to this conclusion.
To have NPD is, among other things, to be incapable of feeling empathy. A person with NPD cannot feel for either the victims or the perpetrators of crime. President Trump’s complete lack of empathy has been on display on many occasions, including when he attacked a gold star family who had lost their son, when he insulted John McCain because he [Trump] “like[s] people who weren’t captured,” a remark that may have led McCain to ask his family not to admit the President of the United States to McCain’s funeral, and Trump’s imitation and mockery of Dr. Christine Blasey Ford, who had testified about Brett Kavanaugh’s alleged attempt to rape her when both were in high school. People with NPD like winners, not losers, and the victims of crime and sometimes its perpetrators are or will have been on the losing end of some of life’s battles. A person with NPD also tends to focus almost entirely on how everything affects him or her rather than others. Figuring out whether a particular defendant should receive a pardon would seem to call upon the very skills that people with NPD lack. That may be why President Trump has so far handed out pardons to people who displayed loyalty to him (like Mike Flynn), while apparently considering additional pardons to members of his immediate family. To Trump, the pardon power is like a key to the bakery: why not take as many cinnamon buns and muffins as you can? No one would likely imagine that any pardoning decision he makes will have anything to do with tempering justice with mercy.
If the pardon power rests on a foundation of empathy (or least the capacity to empathize), it implicitly assumes that we have before us more than one person, the one who pardons (the pardoner) and the one who receives the pardon (the pardonee). The criminal law has come to reflect an approximation of the principle, most famously articulated by John Stuart Mill, that the people should be entitled to do what they want so long as they do not harm others. In general, it punishes actions by one person that have an impact on at least one other person, sometimes many. Suicide is no longer a crime precisely because the person who kills himself has not deprived another person of her life, though the government reserves the authority to stop people from killing themselves, on the theory that a person who kills himself is evidencing a symptom of severe mental illness. To the extent that most crime contemplates a(nother) victim, the pardoner can place himself in the shoes of the/one of the victims and figure out whether forgiveness is warranted.
If we had many crimes that people committed against themselves, then it would make a lot of sense to recognize a self-pardon power because whether we could or could not forgive ourselves would be a relevant dimension of whether we deserved a pardon. But as it stands, we do not have many such offenses, and consulting oneself about whether one can find it in one’s heart to extend forgiveness to oneself, seems wholly alien to the ingredients of crime, punishment, and the exercise of the pardon power. If self-condemnation is not part of the criminal law (notwithstanding the very different practice of plea-bargaining), then self-forgiveness should not be either.
If President Trump pardons himself for whatever offenses he has committed up until the point at which he grants the pardon, does that mean he has forgiven himself? No. A person with NPD, like a person with anti-social personality disorder (ASPD), does not walk around excoriating himself for his actions. In all likelihood, President Trump, like his ASPD brethren (who lack both empathy and a functioning conscience) feels nothing when he repeatedly and egregiously violates the norms of a civilized democracy. If one never felt much or any guilt to begin with, it doesn’t mean anything to say one has forgiven oneself. A self-pardon violates the premises of pardons and, in the case of President Trump, exposes the extent to which pardons were meant for Presidents whose emotional brains (limbic system) are far less damaged than that of our lame duck. The problem with self-pardoning is that the only person who would dare to use it is one who should not be exercising the pardon power at all.