Donald Trump’s uses of executive clemency are not what they seem to be. As scandalous as his pardons and commutations have been, and they have been truly sordid, these acts are rife with failures of the sort this president might most care about: they are failures to understand power. He grasps neither the nature of the authority the Constitution confers on him nor the purposes served by the President’s power to grant pardons and reprieves.
This failure is most fully on display in the explanations and justifications Trump has offered for his pardons and commutations. Reading, as I have, through the corpus of these statements is like a trip through the President’s tortured psyche. One sees all too vividly his superficial and distorted understanding of American values as well.
While Trump professes love for what he calls this “beautiful” power, he has shown no comprehension of the pardon power’s real beauty.
Moreover, for someone who claims to value the clemency power, the President has been extremely stingy with his pardons and commutations. As of Nov. 25, 2020, he had pardoned, commuted or rescinded the conviction of only 45 individuals. This is the fewest of any President since William McKinley, who served from 1897 to 1901. President Barack Obama, by comparison, granted clemency 1,927 times during his two terms.
In these pardons, as in many other areas, Trump routinely violates long-standing norms and procedures. He has bypassed the well-established, bureaucratic process for reviewing clemency petitions, sidelining the Justice Department in favor of a highly personalized approach.
He has also brazenly dangled promises of leniency to encourage his subordinates to ignore or violate the law. This behavior has prompted calls for reforms that would make it a crime if pardons are granted for corrupt reasons.
And, when not using clemency to encourage criminality, he has offered leniency as a reward for those who, like Roger Stone or Michael Flynn, stonewalled investigations into his own nefarious affairs. He has eagerly pardoned or commuted the sentences of people whose crimes showed their contempt for the rule of law.
Trump is, of course, not the first President whose use of the clemency power has been shocking or controversial. George Washington provoked outrage in 1795 when, in the first use of the clemency power, he pardoned participants in the so-called Whiskey Rebellion. After the Civil War, Andrew Johnson granted a complete pardon to the entire Confederate Army over the protests of many of his own political supporters. President Gerald Ford, a century later, roiled the nation when he pardoned his predecessor, Richard Nixon, after the Watergate affair.
Heavy criticism also was directed at Bill Clinton when he pardoned financier Marc Rich who had fled the country after being indicted for income tax evasion, wire fraud, racketeering, and trading with Iran during the oil embargo. The pardon came after Rich’s family made substantial financial contributions to Hillary Clinton’s New York senatorial campaign and the construction of Clinton’s presidential library.
These controversies are stark reminders of how hard it is to square executive clemency with democracy and the rule of law. That power is a vestige of monarchical prerogative, and it exemplifies what I have elsewhere called “lawful lawlessness,” a power authorized by law but not subject to effective legal regulation or control.
This understanding of clemency can be traced back to the 17th-century political philosopher John Locke. As Locke put it, the clemency power means chief executives can “act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it …. [T]here is a latitude left to the Executive power, to do many things of choice, which the Laws do not prescribe.”
In the middle of the 20th century, the Attorney General of the United States issued a report on release procedures in the federal system, including the President’s clemency power. He described it as follows: “Emerging from the field of mere arbitrary caprice or semi-magical folklore, pardon has become an institution which is part of, and yet above, the legal system. It has never been crystallized into rigid rules. Rather, its function has been to break rules.”
And courts have labeled clemency as “an act of grace,” and “as that attribute of Deity whose judgments are always tempered with mercy.”
The heart of the pardon power is found in this quality of grace and mercy, both of which cannot be governed by rules and can never be earned or deserved by good deeds or acts of contrition. It affords chief executives the opportunity to be lenient even when leniency is not deserved.
The merciful disposition says, in effect, “You have received what you deserve, but I will nonetheless reduce your punishment.”
This is the awesome beauty of executive clemency, entirely lost on a President who is more mean than merciful.
In Trump’s use of executive clemency, he always connects it to some notion of its having been earned. In a few cases, prodded by celebrities with whom the President sought to curry favor, he granted clemency to people whose post-conviction lives showed that they had been effectively rehabilitated and that further punishment would be excessive.
Thus, in October of this year, he commuted the sentences of four people, each of whom he said had expressed remorse for their crimes, been model inmates, and had “improved their lives and the lives of others.” Yet the account Trump offered of their lives in prison barely acknowledged the struggles and suffering of people subject to America’s harsh brand of imprisonment. Nonetheless, the statement accompanying the October grants of clemency concludes that “the President has determined that each is deserving of an Executive Grant of Clemency.”
In other cases, Trump has used his clemency power to rectify what he claimed were legal mistakes. Here he conceives of pardons as a form of error correction, treating the President as just another court of appeal for those treated poorly by the law.
When, in April 2018, Trump pardoned Scooter Libby, the statement he issued claimed that Libby had been treated “unfairly” and that his pardon would “rectify” that unfairness. Last month, in explaining Michael Flynn’s pardon, Trump said that he “should never have been prosecuted” and that the pardon would end the “relentless, partisan pursuit of an innocent man.” It would, Trump claimed, “set right an injustice against an innocent man.”
Finally, Trump has often used his pardon statements to express grievances about efforts to hold him accountable for his own corruption or for the damage he has done to the American political system. This kind of grievance-based pardon was most vividly exemplified in what Trump said about the “unjust sentence of Roger Stone.”
That statement treated Stone as a stand-in for the President himself. It took aim at “the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump Presidency.” The statement expanded on this insistent claim still further: “There was never any collusion between the Trump Campaign, or the Trump Administration, with Russia. Such collusion was never anything other than a fantasy of partisans unable to accept the result of the 2016 election. The collusion delusion spawned endless and farcical investigations, conducted at great taxpayer expense, looking for evidence that did not exist.”
Taken together, Trump’s pardon statements exemplify his warped sense of justice as well as his selfishness, narcissism, and paranoia. With the prospect of additional, and even more scandalous, pardons before the end of his presidency, we may be in store for more of the same.