“Always forgive your enemies; nothing annoys them so much.”
– Oscar Wilde
Former Vice President Joe Biden has been asked whether, as president, he would pardon a former President Donald Trump. Biden “committed” to not doing so, promising to allow the justice system to run its course.
The question of a pardon for Trump may seem premature. After all, there is an election to be held.
However, recent polls show a majority of Americans believes Trump has abused power and/or committed criminal acts. Forthcoming negative campaign advertisements will harden those beliefs.
Biden, if elected, will govern a house divided, with a majority angered by the shambles left by Trump. The wreckage will include Trump’s misuse of his Article II pardon power.
Nonetheless, there are serious governance ramifications to Biden’s commitment to “allow justice to run its course.” Pardoning Trump deserves more careful thought than a reflexive pledge designed to placate a base itching to shout “lock him up.”
Presidential pardon power is derived from Article II of the Constitution, providing that the president “… shall have the power to grant reprieves and pardons for offenses against the United States … .” The Supreme Court has ruled this power to be absolute and that a pardon could be granted before criminal conviction.
The term “clemency” broadly defines the president’s power under Article II. It is primarily exercised through commutation of sentences and pardons. Other acts of clemency include amnesty, reprieve and remission of fines.
For over 120 years, clemency requests have been processed through the Office of Pardon Attorney located within the Department of Justice. That office processes thousands of requests annually. To create fairness in assessing clemency requests, specific criteria are employed, such as the severity of the offense, the need for relief and acceptance of responsibility by the offender. While the Office of Pardon Attorney provides reports and recommendations to the president, the president enjoys total discretion to grant or deny pardons.
The vast majority of pardon requests fail. Over the course of their terms, Bill Clinton granted 396 pardons, George W. Bush granted 189 and Barack Obama granted 212.
To date, Trump has granted 25 pardons. Most of Trump’s pardons have been decidedly political. While meritorious requests for clemency languish at the Office of Pardon Attorney, Trump grants pardons based on advice from such noted public policy experts as Kim Kardashian and Sylvester Stallone.
Pardons have been granted for purely personal or political reasons in the past. Bill Clinton infamously pardoned his brother, and Richard Nixon sought to curry favor with the teamsters by pardoning Jimmy Hoffa.
However, until now misuse of presidential pardon power has been a deviation from the norm.
Trump frequently dangles the possibility of a pardon to people willing to do his bidding or to capture a quick headline. Trump is currently “seriously considering” pardoning former national security adviser Michael Flynn and plans to “take a look at” granting a pardon to Joe Exotic, the star of Netflix’s “Tiger King.”
Trump’s Cabinet members, political supporters and friends — individuals who routinely ignore congressional subpoenas, improperly shift congressionally appropriated funds to Trump’s pet projects, award government contracts to buddies, obstruct justice and violate campaign finance laws — sleep easy knowing that Trump can pardon them before a new sheriff comes to town.
The Founding Fathers did not conceive of presidents using the pardon power in this fashion. In Federalist Paper 74, Alexander Hamilton wrote that “in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore tranquillity to the commonwealth.”
With the goal of restoring tranquillity, George Washington pardoned Whiskey Rebellion insurgents, Abraham Lincoln and Andrew Johnson pardoned leaders of the Confederacy and Jimmy Carter granted amnesty to Vietnam War protesters.
By pardoning Richard Nixon in 1974, President Gerald Ford hoped to “restore tranquillity to the commonwealth,” to move the country past Watergate. While Ford admitted that he “failed to anticipate the vehemence of the hostile reaction” to his pardon of Nixon, he repeatedly defended the decision. Ford asserted, “America needed recovery, not revenge. The hate had to be drained and the healing begun.”
Although Ford’s presidential achievements do not read like Franklin Roosevelt’s first 100 days, some things did get done after the Nixon pardon, including changes in special education, campaign finance, immigration and energy conservation.
On his website, Biden indicates that he intends to use the Office of Pardon Attorney to carry on Obama’s policy, namely to use clemency powers to grant relief to individuals serving long sentences for nonviolent crimes. Reinstating the important role of the Office of Pardon Attorney is a good step to restoring fairness.
But what to do with Trump, whose mud-wrestling against the “deep state,” the media and other institutions has disrupted the commonwealth’s “tranquillity”?
Biden’s pledge to not pardon Trump has policy merit. No one should be above the law. Grants of clemency breed public cynicism about a justice system already perceived as favoring those with influence. If Trump cheated the country, why shouldn’t he fully account for his misdeeds?
On the other hand, the nation is weary of Trump and of governance by investigation. A Biden election victory would be a mandate to quickly repair the damage done by Trump, to end the use of the presidential podium for incoherent self-aggrandizement, to erase the daily tweeting of smears from our collective memory and to get on with addressing pressing national needs.
If the country is anxious to have public resources focus on health care, the environment, economic inequality and justice reform, Biden must at least consider pardoning Trump. Otherwise, prosecutors, inspector generals, the Government Accountability Office and congressional committees will spend the entire Biden presidency focusing on how badly the country was snookered by Trump. News outlets, like gawkers at accidents, will fixate on the unearthing of misbehavior.
An unpardoned Trump will remain on stage raging and rambling on about “deep state” conspiracies, “fake news” and “hoaxes.”
Since deportation does not appear to be a viable option, a pardon could quiet some of Trump’s discordant noise.
Does the country really want to relive, through investigations, the nightmares we have been having since 2016? Pardoning Trump could be our nation’s melatonin. Further, granting a pardon to Trump would not be a praise-filled slap on the back for “a job well done.”
As stated by the Supreme Court, a presidential pardon “carries an imputation of guilt; acceptance a confession of it.”
If President Biden wants to move the country forward, he should reconsider his pledge to not pardon Trump.
Robert Moilanen is a retired Minnesota attorney.