Our Cocktail Party constitutional law series continues with an overview of presidential pardons. We attempt to introduce a modicum of objectivity into the discussion to temper the propaganda flowing from CNN.
Why the interest?
Despite innuendo from the liberal press, President Trump’s use of the pardon pen has been uncharacteristically restrained. After more than two years in office, he has issued pardons to only eight living people – none of whom were friends, family, attorneys, or campaign staff.
On March 20, CNN legal analyst Jennifer Rodgers accused Trump of “continuing his pattern of abusing the pardon power.” One week later, the U.S. House Judiciary Committee examined the “Constitutional Role of the Pardon Power.” Much like they fretted that Trump might fire Special Counsel Robert Mueller, left-wing trepidations flow from the possibility that Trump might pardon an undesirable – including himself.
What does the Constitution say?
The U.S. Constitution’s grant of presidential clemency power for federal crimes remains unchanged since its adoption in 1789. Article II, Section 2, Clause 1 contains the pertinent authority: “The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Notably absent is any input by the other two branches of government, such as the “advice and consent” provision applicable to treaties and appointments of federal judges.
“Reprieves and Pardons,” like alcoholic drinks, foreign diplomats, and members of Congress, come in many forms – including full pardons, blanket pardons, conditional pardons, commutations of sentences, conditional commutations of sentences, amnesties, remissions of fines, and respites.
The U.S. Supreme Court attempted to explain the full pardon in an 1866 decision: “A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.” In 1915, the Court walked back the definition and observed that acceptance of a pardon implied guilt. Regardless, a full pardon overturns a conviction, but it does not expunge the record.
Trump’s first exercise of a full pardon, in August 2017, exonerated former Sheriff Joe Arpaio of Maricopa County, Arizona, of criminal contempt of court charges. At the time of the pardon, the unrepentant 85-year old former U.S. Marine and 25-year federal drug enforcement agent was no longer in office.
A commutation is more limited, leaving the conviction in place but reducing the sentence. In 2018, Trump granted a reprieve – commuting a life prison sentence to time served – to Memphian Alice Marie Johnson, a 63-year-old African-American first-time, non-violent drug offender, who already served 21 years in prison. She received a standing ovation at the belated 2019 State of the Union. President Obama had denied Johnson’s clemency request.
Remissions of fines are less common, with only two having been issued in the last 35 years. President Clinton, in 1999, extinguished the unpaid fines of two Puerto Ricans convicted of robbery conspiracy.
Respites are even rarer. This form of clemency merely postpones the effectiveness of a judicial sentence. The only use of a respite since 1980 occurred in 2000 when Clinton temporarily stayed the court-ordered execution of Juan Raul Garza, a murderer and drug dealer, pending a clemency review. Trump could stay a federal judge’s order for Paul Manafort to report to prison.
In this article, I follow the common practice of inexactly using the word “pardon” to generally refer to any act of presidential clemency (including commutations).
But can President Trump pardon ….
A Family Member? For a pardon of a relative, we need only go back to January 20, 2001. Among the 140 pardonees on Clinton’s last day in office was one half-brother Roger Clinton, a convicted felon (distribution of cocaine).
Before sentencing? A pardon before sentencing is hardly unusual. On January 17, 2017, just days before Trump took office, Obama pardoned Marine Corps General James Cartwright, prior to sentencing, for a felony involving leaked classified information on the U.S.-Israel cyberattack against Iranian nuclear facilities.
Before a trial? In 1992, President George H. W. Bush pardoned former Defense Secretary Caspar W. Weinberger mere days before his trial on charges of lying to Congress about the Iran-Contra affair.
Before indictment? The U.S. Supreme Court, in Ex parte Garland (1866), explained that a pardon “may be exercised at any time after [a crime’s] commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.” President Ford pardoned Richard Nixon the day after Nixon resigned and before any charges were filed.
All U.S. citizens implicated in the “Russian Collusion”? Presidents Lincoln and Grant issued blanket, conditional pardons to Confederate soldiers. On his second day in office, President Jimmy Carter pardoned Vietnam War draft dodgers.
Prior to review by U.S. Pardon Attorney? Federal regulations delineate procedures to obtain a pardon – but the regs, signed by Clinton, are “advisory only… and do not restrict the authority granted to the President under … the Constitution.”
A dead person? The constitution is silent on this issue. The first of three posthumous pardons took place in a 1999 Rose Garden ceremony, when Clinton pardoned Lt. Henry Flipper – the first African-American military graduate of West Point – of a military court martial dating back to 1881. President George W. Bush, in 2008, pardoned a deceased government employee who aided Israel back in 1948. In 2018, Trump exonerated boxer-great Jack Johnson from a 1913 conviction by an all-white jury.
Himself? Considerable uncertainty exists as to whether a president can pardon himself (or herself). On the favorable side of the argument, the Constitution does not prohibit it.
Noteworthy Pardons since JFK.
Congress wouldn’t change the mandatory minimum sentences for first time offenders under the Narcotics Control Act of 1956, so President Kennedy essentially nullified the crime through acts of clemency.
One-third of Clinton’s acts of clemency occurred on his last day in office. The Who’s Who dirty laundry list included Patty Hearst, Susan McDougal (of Whitewater fame), Marc Rich (the hedge fund fugitive hiding in Switzerland), and two former Democratic Congressmen (one of whom was convicted of soliciting child pornography). The resulting investigation – Pardongate – involved a federal prosecutor named James Comey (yes, that one).
Obama issued more pardons than the previous 13 presidents combined. His most sensational pardon benefited transgender former Army intelligence analyst Chelsea Manning, who had served only 7 years of a 35-year espionage sentence. Obama also set a one-day presidential record (330 commutations) on his last full day in office.
Rhetoric ad nauseam
Trump’s first pardon galvanized the liberal legal pundits. There were cries of “let justice run its course” as if they had forgotten Obama’s pardon of Cartwright. And that the pardon of former Sheriff Joe Arpaio of Maricopa County, Arizona of criminal contempt of court charges “circumvented” federal regulations, ignoring the merely advisory nature of the provisions. Another lame refrain involves the “rule of law.” There is no law more supreme than the U.S. Constitution, which authorizes presidential clemency. And the law applies even if, as the New York Times described Clinton’s unpardonable pardon of Marc Rich, it constitutes “a shocking abuse of presidential power.”
You might wonder about the adage that no man is above the law. That circular statement is occasionally true. But pardons – whether issued by a Republican or Democrat — are part of the legal system. Similarly, we must also contend with other vexing legal concepts: statutes of limitations, double jeopardy, immunity, jury decisions, bankruptcy discharges, probable cause and … well, prosecutorial discretion.
And that brings to mind Shakespeare’s memorable line about the first thing we should do.
» BEN WILLIAMS the author, is a Mississippi attorney. Email Ben at MBWJ@aol.com. Ford Williams the artist, is a junior at the Savannah College of Art & Design (SCAD)..
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