President Gerald Ford in 1974 preemptively pardoned his White House predecessor, Richard Nixon, for Watergate crimes. In 1976, many Americans were so enraged that they voted for Ford’s Democratic opponent, Jimmy Carter, who, on his next-to-last day as president in 1981, pardoned left-wing folk singer Peter Yarrow — for a 1969 sexual offense, when he was 31 years old, against a 14-year-old girl. Yarrow had pleaded guilty and served three months of a one-to-three-year sentence.
In 1999, Bill Clinton reduced the sentences of 12 Puerto Rican nationalists convicted of violent offenses. The House and Senate responded with overwhelming bipartisan votes of condemnation. On his last day in office, in 2001, Clinton also pardoned Marc Rich, a wealthy fugitive tax evader whose ex-wife was a Democratic donor.
Absolute, unreviewable, vested in a single politically motivated individual — it’s as if the presidential pardon power were designed to be misused or abused.
And yet, in its capacity for softening the hard edges of federal law enforcement, that power is magnificent, one of the few attributes of British monarchy that the nation’s Founders chose to adapt, lest, as Alexander Hamilton put it, American justice “wear a countenance too sanguinary and cruel.”
Trump’s dubious use of his power to pardon (or commute sentences) — on behalf not only of Flynn but also of politically loyal miscreants such as former Arizona sheriff Joe Arpaio, longtime adviser Roger Stone and conservative writer Dinesh D’Souza — doesn’t look good even in historical perspective. And Trump still has seven more weeks in office.
But these actions should not turn public opinion against the presidential power itself, any more than his predecessors’ mistakes and abuses did.
Presidents probably ought to use executive clemency much more than they do, not just to correct excesses in individual cases, but to send messages about the proper goals of criminal justice and the nation’s direction more broadly.
Hamilton envisioned the presidential pardon as a tool to heal national conflicts, writing that a “well timed offer of pardon to . . . insurgents or rebels may restore the tranquility of the commonwealth.”
In that sense, Grant’s pardons for the Ku Klux Klan and Clinton’s clemency for the Puerto Rican nationalists — agree with those moves or not — were not inconsistent with the Founders’ design.
A similar Hamiltonian logic underlay Carter’s blanket pardon of Vietnam draft evaders (as well as Ford’s previous, more limited, offer) and even Barack Obama’s campaign of clemency for nonviolent drug offenders — if you think of it as part of winding down the nation’s war on drugs.
Trump made a few pardons of this kind: to Alice Marie Johnson, an African American woman who had turned her life around while serving a life term for cocaine-dealing, as well as, posthumously, to women’s suffrage leader Susan B. Anthony and boxing champion Jack Johnson, a Black athlete unjustly convicted of a federal morals charge in 1913 because he had a relationship with a White woman.
Trump’s record is poor not just because he has granted clemency undeservedly, but because he has used the authority so infrequently: only 44 times as of Nov. 23, according to the Pew Research Center. That’s less than 0.5 percent of requests — fewer than any other president in the past 120 years.
Obviously, politics influenced Trump’s pardon process, both in the petty sense of rewarding cronies and in the larger sense of trying to exploit Alice Marie Johnson’s pardon for gain with Black voters.
There’s no way to eliminate such crass considerations from the pardon process — even Peter Yarrow, the son-in-law of former senator Eugene McCarthy’s brother and erstwhile performer at Democratic fundraisers, was not without connections.
A built-in irony of the pardon power is that, often, the righteousness and necessity of using it varies inversely with the political benefits of doing so.
Pardoning one of society’s outsiders can require overcoming what Hamilton called “the dread of being accused of weakness or connivance.” Trump’s lack of that kind of political courage may explain his stinginess with clemency, except for the likes of Stone and Flynn.
President-elect Joe Biden is the first avowedly anti-death penalty candidate to win the presidency in recent memory, if not ever. Will he use the pardon power to clear federal death row of its 50-plus inmates? The contrast with Trump’s expediting executions in his final days would be stark. And his power to do it would be clear.