Tuesday Talk*: Pardon Me

The New York Times reports that Trump plans to issue perhaps 100 pardons on this, his final day in office.

As President Trump enters the final hours of his term, he has been intently focused on who should benefit from his clemency power. Along with the White House counsel, Pat A. Cipollone, and advisers including Ivanka Trump and Jared Kushner, his daughter and son-in-law, Mr. Trump has spent days sifting through names and recommendations, assembling a list that officials say he intends to disclose on Tuesday, his last full day in office.

The size and precise composition of the list is still being determined, but it is likely to cover at least 60 pardons or commutations and perhaps more than 100. Already, Mr. Trump has been making calls to some of the recipients, people briefed about them said, and he held another meeting about the topic on Monday afternoon.

There is no indication that he plans to pardon himself, an exceptionally dubious notion as to its efficacy, but there are rumors that people are trying to buy his pardon, that friends and family might be included and, if nothing else, cronies who didn’t rat him out or write a book will be given their reward for their loyalty. The Pardon Clause is set forth in the Constitution, Article II, Section 2, Clause 1.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

So pardons. My position is fairly straightforward.

Should the Pardon Power be abused tomorrow for corrupt purposes, remember that the problem isn't the Pardon Power but the person wielding it.

The solution isn't to limit the Pardon Power, but elect better presidents.

— Scott Greenfield (@ScottGreenfield) January 18, 2021

Mind you, this does not include the efficacy of a self-pardon, something no president has done, no court has endorsed and would seem to defy the text of the Constitution.

Others take very different views of the pardon power, many outraged at it being used for corrupt purposes and thus arguing that it must be constrained or, as one woman who speaks “as a lawyer,” contends:

Obviously, the twitter warning label that this twit is batshit crazy malfunctioned, to the detriment of a few folks who might assume that a lawyer would both be sufficiently competent not to twit something so flagrantly wrong or so shameless as to let her delusions fly into the wild. But I digress.

Granted, the president’s unfettered pardon power means that he can pardon undeserving people. It wouldn’t be the first time, for him or others. The worst that comes of such improvident use of power is that bad people get a free pass, which isn’t entirely uncommon in law. After all, when evidence of guilt of a heinous crime is suppressed, doesn’t a bad dude walk? It happens.

There are some ideas about limiting the pardon power, from requiring approval of Congress to restricting it during the lame duck period. But these ideas have consequences. While they would prevent the potential “corrupt” use of the power to buy the silence of co-conspirators, pay off loyalists and cronies, this could also prevent a president from pardoning a highly controversial person like Mumia Abu-Jamal. Is it worth the price?

It’s unknown whether there will be any controversial pardons coming today, although it would likely shock no one should it happen. Should the Pardon Power be constrained or should we trust the president, in whom a great many decisions of significant depend, to exercise the power without limitation?

Don’t just talk about your fix, but about the consequences of your fix. What will be gained? What will be lost? This isn’t just about Trump’s use of the power, but any other president who comes after him.

*Tuesday Talk rules apply.