Jean Teillet is the author of The North-West is Our Mother: The Story of Louis Riel’s People, the Métis Nation and Métis Law in Canada. She is an Indigenous rights lawyer and the great grandniece of Louis Riel.
We are going to hear a lot about pardons in the next month or two. U.S. President Donald Trump may have been defeated at the polls, but he retains a virtually unchecked pardoning power. It is a foregone conclusion that he will pardon his friends. The question is whether he will (or even legally can) pardon himself, as he has already claimed to be able to do – which would be right in line with the already long-tarnished and ignominious history of the act.
The pardon is a species of extra-judicial clemency that also includes exoneration, amnesty and commutation of sentence. Clemency powers are discretionary, with almost no checks and balances, and so it is no surprise that the history of clemency is a loaded litany of humanity’s best and worst instincts.
When they’re used most ideally, a pardon is a rescue remedy for the victims of legal errors. In Canada, pardons provide relief from further legal consequences for those who have paid their penalty. That’s a good thing, and virtually every country in the world has some means of clemency to counteract the often brutal and unrelenting consequences of the law. At its worst, however, clemency is used to benefit individuals or to reinforce the power of the state. It can also be used as a mop to clean up political messes. Clemency is often designed to ensure that everyone knows who bestowed the gift; the recipient is expected to be very public in conveying the appropriate amount of gratitude.
It has never been easy to access. Ancient Athenians could petition for amnesty, though the prerequisite of 6,000 signatures was likely a powerful deterrent. Some states would regularly issue pardons on official holidays; it was at an annual Passover pardon that Pontius Pilate pardoned Barabbas and condemned Jesus. Pardons are issued every year in Iran to mark the birthday of the Prophet Mohammed, and just this week, 157 such pardons were issued.
In 1974, Republican president Gerald Ford granted a “full, free and absolute pardon” to his predecessor Richard Nixon for crimes he might have committed during his term as president. Mr. Ford claimed the decision was made so there could be closure to the Watergate affair – that by accepting the pardon, Mr. Nixon was effectively confessing his guilt. But there would be no social closure afterward, and the American public, unable to get the judicial catharsis it needed by bringing Mr. Nixon to judgment, turned its wrath on the Republican Party. In the following midterm elections, the Republicans lost 43 seats in the House and three in the Senate, and Mr. Ford was defeated in the next presidential election – losses attributed by many historians to the pardon.
Although Mr. Nixon seriously considered pardoning himself, no president has actually done so. But that might change in the next few months. There is no lawful way to stop Mr. Trump from pardoning himself; after-the-fact legal action against the 74-year-old would take years, if not decades, to conclude, and by then, only legal scholars will care. In the immediate term, Mr. Trump will be happy to walk away from the White House with his pardon in his pocket.
But there will be consequences. The Senate majority will be decided by a runoff in Georgia in January, and if Mr. Trump pardons himself, those already-close races may go to the Democrats, especially if Republicans either tacitly accept a Trump self-pardon or actively support it. Republicans could also pay in the midterms. It’s unlikely that Mr. Trump will care about the ultimate fate of the Republican Party, since his self-interest tends to override every other consideration. He may still face state prosecutions, but that will have no bearing on his ability, through his pardon power, to sweep federal prosecutions off the table. So why wouldn’t he pardon himself? He has nothing to lose.
President-elect Joe Biden could challenge the pardon in court, but that will not heal the nation. Mr. Biden seems unlikely to use his political capital to blow down a defeated man, particularly one as popular as Mr. Trump remains among his many supporters. So the reality is this: Mr. Trump would likely get away with pardoning himself. Democrats will see it as the ultimate act of corruption. Mr. Trump’s supporters will see it as a smart move. And no healing can possibly occur.
So does a pardon or exoneration really ever change anything? It is a question many states have had to deal with, including Canada. On Nov. 16, we mark the 135th anniversary of the hanging of Louis Riel, and Canadian governments through the years have, on multiple occasions, offered to pardon or exonerate him of his conviction of high treason, an offer usually unaccompanied by any other kind of reconciliation.
For decades Canada saw exoneration of Riel as the only Métis issue it was willing to act on, likely because it cost nothing but minimal political capital. The Métis Nation has always rejected such moves, seeing them for what they were: tokenism. Lately, though, this has changed. Canada has now adopted a more respectful relationship with Indigenous people. Exoneration might now be accompanied by meaningful action.
There have been recent calls for exoneration by means of a bill in Parliament. There is a long history of such bills. Most of the early ones sought a pardon. Some made no mention of the Métis at all. Now the language has evolved and the relief sought is exoneration. But nothing turns on the name. Call it a pardon or exoneration, redress or grace, remission or commutation – it is still a grant of clemency granted or withheld at the state’s pleasure.
The Métis Nation has never sought state clemency for Riel because, in their view, Riel doesn’t need exoneration. Canada does. Canada would not be exonerating Riel. It would, like Trump’s pardon, be exonerating itself. Perhaps the better move would be for the Métis Nation, in the spirit of reconciliation, to convene a process to consider exonerating Canada.
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