Opinion | Criminal Justice

Presidential pardons need to go

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In Article Two, Section Two, Clause One, the United States Constitution gives the president "the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Courts have subsequently declared that pardons can be issued at any time, before legal proceedings begin, during trials, and after conviction. Nor are pardons subject to Congressional oversight or limitation.

In Federalist #74, Alexander Hamilton provided the rationale for such a broad grant of authority to the president. Without some recourse to "exceptions in favor of unfortunate guilt," Hamilton added, "justice would wear a countenance too sanguinary and cruel." This "benign prerogative" should be put in the hands of one person, and fettered or embarrassed "as little as possible," because recognition by the president that "the fate of a fellow creature depending on his sole fiat would naturally inspire scrupulousness and caution [and] the dread of being accused of weakness or connivance would beget equal circumspection."

At the Virginia Ratifying Convention in June 1788 George Mason reminded his fellow delegates that the president might not always be a person, akin to George Washington, with a moral character beyond reproach. If a president had the power to grant pardons before indictment or conviction, he asked, "may he not also stop inquiry and prevent detection?" A president might pardon crimes "which were advised by himself." For this reason, "the case of treason ought, at least, be excepted. This is a weighty objection with me," Mason said.

In his response to Mason, James Madison identified "one security" against these dangers. If the president "is connected in any suspicious manner with any person," Madison opined, "and there be grounds to believe he will shelter him, the House of Representatives can impeach him."

With 230 years of hindsight, we can now conclude that Mason was right, and Hamilton and Madison were wrong.

Presidents of both parties have often been motivated by considerations other than miscarriages of justice - and they have issued pardons in the days before they left the White House, eliminating impeachment as a remedy.

Bill Clinton's pardon of Marc Rich, a commodities trader who fled the country following an indictment for failing to pay more than $48 million in taxes, whose ex-wife made substantial donations to the Democratic Party, the Clinton library and Clinton's impeachment defense fund, is one of many examples.

President Trump has now put an exclamation point on the claim that an unfettered authority to pardon is an invitation to an abuse of power.

Trump, let's remember, pardoned political operators who worked on his campaign (Roger Stone and Paul Manafort); politicians who supported him in 2016 (Duncan Hunter, Chris Collins); Michael Flynn, his former National Security Adviser, who apparently told him to declare martial law; and Stephen Bannon, who suggested that the heads of Dr. Anthony Fauci and FBI Director Christopher Ray be put "on pikes... at the two corners of the White House as a warning to federal bureaucrats: You either get with the program or you are gone." The Trump pardon list includes former Blackwater guards convicted of massacring unarmed Iraqi civilians; his son-in-law's father; a former Congressman who pled guilty to taking $2.4 million in bribes from military contractors; and an eye doctor who fraudulently told Medicare patients they had eye diseases, performed unnecessary procedures on them, and falsely billed the federal government more than $42 million.

The latter case - and of rapper L'il Wayne - prompted Tucker Carlson to plead that Trump not "degrade" himself during a segment on Fox News. 

It should now be clear to everyone that presidential pardons are an idea whose time has gone.

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of "Rude Republic: Americans and Their Politics in the Nineteenth Century."

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