The Power of the Presidential Pardon
Can the president protect his progeny?
By Brendan Wilson
Despite the efforts of the best and brightest legal team the president could assemble, it appears that the results of the 2020 election will not be overturned. On Friday evening, California certified its election results, officially awarding Joe Biden the 270 electoral college votes required for victory. For better or for worse, Donald Trump's reelection bid has failed; Hugo Chavez, the Grinch, and the cabal of Satan-worshipping Democratic pedophiles has prevailed… or so I was told by Newsmax.
Whatever the cause of the outcome (see Occam’s Razor), Trump now finds himself in the august company of history's reluctant one-term presidents: John Adams, William Howard Taft, and George H.W. Bush to name a few. While the sting of defeat and the unflattering designation of “lame duck” are enough to depress anyone, the Donald need not despair. With the term's final days comes the opportunity to force through unpopular, 11th hour presidential pardons (ask Bill Clinton).
The executive’s power to pardon is as old is the Republic itself. During the 1787 Constitutional Convention, Alexander Hamilton argued that the president should possess the authority to grant leniency when appropriate and “restore the tranquility of the commonwealth” in times of rebellion. Skeptics like Virginia delegate George Mason felt that pardon power in hands of one man smacked of monarchy. During disagreements such as these, our founders resorted to an ancient, now defunct practice called compromise, through which they were able to strike an agreement granting the president pardon authority, but only for federal crimes and never when the person in question is facing impeachment.
Our young republic was barely out of the gate before George Washington put the pardon power to use. In 1794, John Mitchell and Philip Weigel were very upset about the government’s imposition of an excise tax on a very popular spirit. So upset, it turns out, that they fomented an armed insurrection that would later be known as the Whiskey Rebellion, which required a militia of 13,000 to quell. For the sake of domestic "tranquility" Washington pardoned the two gentlemen the following year.
Less than a decade later, Thomas Jefferson, ever the skeptic of federal authority, pardoned all those convicted of having violated the unpopular Alien and Sedition Acts famously enacted by John Adams, his portly predecessor and political rival.
The Civil War created the opportunity for pardons on a much grander scale. On Christmas Day in 1868, Andrew Johnson pardoned all those that fought for the Confederacy. He also granted clemency to scores of Confederate politicians during his three years as president. Though this helped to bind the wounds of a bleeding nation, it also freed many of the racist politicians that would go on to lay the groundwork for Jim Crow.
The country’s most famous act of presidential clemency was handed down by Gerald Ford in September 1974, when he granted Richard Nixon an unconditional pardon for crimes he “committed or may have committed or taken part in” while president from 1969 to 1974. Ford was aware that the decision was enormously unpopular and would cast a long, dark shadow on his 1976 campaign, but knew that a former president being tried on criminal charges would be too much for a nation that had already endured so much toxic division.
For the most part, Donald Trump has differed from the measured, orthodox approaches of his predecessors, preferring to pardon pals (Rod Blagoyevich), supporters (Roger Stone), former associates (Michael Flynn), and celebrity requests (Alice Marie Johnson, who received a full pardon against the recommendation of the Justice Department after the president was lobbied by Kim Kardashian West). To be fair, this caprice is not wholly without precedent. In a flurry of midnight pardons carried out on his last day in office, Bill Clinton pardoned his wayward half-brother, Roger Clinton, who had been convicted for trafficking cocaine.
Will we see a lame duck salvo of pardons? Fox News personality Sean Hannity offered his advice last week: “The president out the door needs to pardon his whole family and himself because [the Democrats] want this witch hunt to go on in perpetuity." While the power to pardon his children is absolute, the self-pardon is constitutionally stickier. The matter was researched decades ago by Mary C. Lawton, the deputy attorney general under Richard Nixon. She concluded that while the Constitution does not explicitly outlaw it, the act would likely precipitate a legal battle should federal charges be brought against Trump.
Should Trump decide to forgo these pardons, Biden would be presented with an opportunity to do the right thing and fulfill a key campaign promise. A Gerald Ford-esque pardon of the president and his children would be a sign of good faith to the 74 million Americans that voted for Trump and would show that there's some weight behind Biden's pledge to "be a president who seeks not to divide but unify." An unconditional pardon would be a disappointment to Democrats out for blood, but among this country's highest priorities must be bridging the partisan divide and curing the body politic of malignant polarization.
And with that, I leave you with a bit of delicious turkey pardon irony.
Blakemore, E. (2020, December 04). The contentious history of U.S. presidential pardons. Retrieved December 06, 2020, from https://api.nationalgeographic.com/distribution/public/amp/history/2020/12/controversial-history-presidential-pardons-from-watergate-to-whiskey-rebellion
Haberman, M., & Schmidt, M. (2020, December 01). Trump Has Discussed With Advisers Pardons for His 3 Eldest Children and Giuliani. Retrieved December 06, 2020, from https://www.nytimes.com/2020/12/01/us/politics/rudy-giuliani-pardon.html?searchResultPosition=6
Office of the Pardon Attorney. (2020, December 01). Retrieved December 06, 2020, from https://www.justice.gov/pardon
Pardons Granted by President Donald Trump. (2020, December 01). Retrieved December 06, 2020, from https://www.justice.gov/pardon/pardons-granted-president-donald-trump
Trump pardons Alice Johnson, whose cause was backed by Kim Kardashian. (2020, August 28). Retrieved December 06, 2020, from https://www.reuters.com/article/us-usa-johnson-pardon/trump-pardons-alice-johnson-whose-cause-was-backed-by-kim-kardashian-idUSKBN25O2PE