Donald Trump is using a power steeped in history in an 11th-hour effort to rewrite history.
The President is employing the constitutional power of the pardon to do more than settle scores that grew out of the Russia investigation. With the scratch of a pen, Mr. Trump is pardoning the principals convicted by Robert Mueller in a final-days effort to win his battle with the special counsel whose 2017-19 investigation tormented him.
American presidents since George Washington have used the clemency power in Article II, Section 2, of the Constitution, but only Mr. Trump has pardoned or commuted the sentences of his political allies to the degree to which he has done, with more than 90 per cent of his decisions benefiting those with personal, political or legal ties to the President.
Barack Obama issued 1,715 pardons or commutations – 18 times as many as Mr. Trump – but most were to drug offenders and none to political allies, though he did pardon Hall of Fame first baseman Willie McCovey, one of his favourite athletes, convicted of tax evasion.
In seeking to erase the blemishes growing out of the Mueller investigation, Mr. Trump is seeking to wipe away the historical record with pardons addressing what the White House described in its clemency statement as “perhaps the greatest witch hunt in American history.” The most famous presidential pardon – when Gerald Ford pardoned president Richard Nixon in 1974 – was not an effort to efface history. It was, instead, an effort to shape an American future free of the Watergate stain.
Moreover, Mr. Ford for years carried in his wallet a tattered slip of paper with notes about a 1915 Supreme Court decision stating that acceptance of a pardon implies guilt. This was a burden that Mr. Ford’s personal envoy to Mr. Nixon made clear in his fraught negotiations with the disgraced former president, and that Mr. Trump will carry if he attempts to pardon himself.
The latest Trump pardons in a Christmas week crowded with 46 acts of presidential clemency in three days – offered to his campaign manager Paul Manafort, his consigliere Roger Stone, his son-in-law’s father, Charles Kushner, among others – raised anew the possibility that the President might indeed seek to pardon himself, an unprecedented act with uncertain legal consequences.
Such a decision could spawn yet another political battle, with Democrats pressing newly inaugurated president Joe Biden to attempt to wipe away Mr. Trump’s self-pardon based on a 1974 Justice Department opinion that cited “the fundamental rule that no one may be a judge in his own case” as part of its brief that Mr. Nixon could not pardon himself.
The pardon power, with antecedents in the Bible, ancient Rome and 16th-century England, prompted contention from the earliest days of American history.
It was the topic of fevered discussion in the 1787 Constitutional Convention and, particularly, in the various state debates over ratification of the Constitution, especially in Virginia. In Federalist Paper 74, the effort to explain the Founding Fathers’ reasoning and to press state legislatures to ratify the document, Alexander Hamilton argued that without the presidential clemency power, “justice would wear a countenance too sanguinary and cruel.”
Though Mr. Trump’s spate of pardons – and the prospect that the next round might include former New York mayor Rudy Giuliani, the President’s most recent aggressive advocate – suggest the presidential clemency power is arbitrary, there is an Office of the Pardon Attorney in the Justice Department that was established in 1865 to regulate the clemency process. Mr. Trump regularly bypasses this office.
“We already have fairly carefully laid out procedures, but they’ve been disregarded in the past by presidents of both parties,” said Jon D. Michaels, a UCLA legal scholar. “We cannot fully divorce Trump’s presidential abuses from some of the less unhinged but still imperial predilections of past presidents.”
Recent abuses of the clemency power – particularly Mr. Nixon’s pardon of lieutenant William Calley, convicted in the Vietnam My Lai massacre, and Bill Clinton’s pardon of the financier Marc Rich on his last day in office – have prompted calls to eliminate this presidential discretion.
The committee Mr. Biden established with his nomination rival Senator Bernie Sanders, to create a united Democratic front for the general election, called for an independent board “to ensure an appropriate, effective process for using clemency, especially to address systematic racism and other priorities.”
Political scientists, philosophers and ethicists insist that pardons connote what the country’s fourth and perhaps most consequential chief justice, John Marshall, described in 1833 as an “act of grace” – the very words used in Black’s Law Dictionary, which is commonly regarded as the fundamental guide to American jurisprudence. Mr. Trump’s 94 pardons and commutations are the fewest acts of grace of any full-term president, except for George H. W. Bush (77), in the past 220 years.
Months before the Civil War ended, Abraham Lincoln heard the sound of musket fire ricocheting from the far precincts of the American capital, shots directed at military deserters that broke the tranquility of a Washington summer’s day. “I am wondering,” he said to a companion, “whether I have used the pardoning power as much as I ought.”
The thought haunted him. The following early spring, recently inaugurated for his second term and freshly designated the victor in the Civil War, he signed a pardon for another soldier who faced a death sentence after deserting the Union ranks. “Well,” the beleaguered president said, “I think the boy can do us more good above ground than under ground.” Hours later, Lincoln himself was killed by gunfire.
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