Margaret Colgate Love served as U.S. pardon attorney from 1990 to 1997 and now represents applicants for presidential pardon.
President Trump’s newfound enthusiasm for his pardon power has evoked consternation among his critics, in part because he appears to have bypassed the Justice Department’s pardon advisory program. But having managed that program for almost a decade during the first Bush and Clinton administrations, and represented applicants for pardon and sentence commutation in the 20 years since, I find much of this criticism unwarranted.
There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional. His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law. While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system.
Moreover, each of his grants has some precedent in recent pardon practice. His most recent grant, to Alice Marie Johnson, a woman serving a life sentence for involvement in drug trafficking, carries on President Barack Obama’s program of sentence commutations. Even his pardon of former Maricopa County, Ariz., sheriff Joe Arpaio last summer echoes President Ronald Reagan’s decision to fulfill a campaign promise by preemptivelypardoning two FBI officials who had approved illegal surveillance of domestic terrorists.
In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated. That is how the pardon power was designed to work by the framers of the Constitution.
But while Trump’s pardons are hardly unique, the process that produced them is troublesome. Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy. This makes a mockery of the pardon power’s historical operation as part of the justice system, manifested by its administration by the Justice Department since the Civil War. President Bill Clinton similarly avoided the ordinary pardon review process at the end of his presidency, depriving his grants of legitimacy and threatening long-term damage to his reputation.
Trump’s pardoning record to date suggests two things: First, it is past time to develop a coherent and defensible theory of pardon’s role in the modern federal justice system, based on Alexander Hamilton’s original rationale for pardons to temper the law’s severity and calm political unrest.
Second, the presidency needs and deserves a more reliable and respectable system for managing the pardon power — one that is both responsive to an executive policy agenda and accessible to ordinary people. The culture and mission of the Justice Department have become irreconcilably hostile to pardon’s beneficent purposes and to its regular use by the president. That agency’s failed stewardship of the power is aggravated in Trump’s case by the same sort of dysfunctional relationship with his attorney general that Clinton had with his.
But just because the Justice Department has essentially forfeited its role as official clemency adviser does not mean the president should instead take his cues from casual conversations with celebrities and personal acquaintances — at least not in a system based on the rule of law.
The most effective way to deal with the institutional conflict of interest that produced and perpetuates this unfortunate situation is to transfer administration of the pardon power to the Executive Office of the President, along with the staff experts in Justice’s Office of the Pardon Attorney. Federal prosecutors could continue to play an advocacy role in pardon matters, but they would no longer control access to the president’s power.
As a model, the federal government might consider Delaware’s clemency system, in which an official board chaired by the lieutenant governor serves as gatekeeper to the governor’s pardon power. This board and its small staff have produced hundreds of recommendations each year, mostly accepted by the governor. Significantly, the Delaware attorney general’s role is strictly one of an advocate.
While the president’s pardoning options could not be limited without a constitutional amendment, the many practical and political virtues of a Delaware-like management system should encourage presidential compliance. Congress might even offer a record-sealing benefit for cases that go through the regular process, as South Dakota’s legislature did several years ago after hundreds of “secret” gubernatorial pardons came to light. This would not only lend greater credibility to specific grants but could also allow pardons to play a more effective role in regulating the operation of the justice system and encouraging law reform.
There are many reasons to be guardedly grateful that Trump has taken an interest in this time-honoredconstitutional power. But now we must encourage him to use it more responsibly for the benefit of those who have no friends in high places, if not for the benefit of his own legacy.