The Founders put the pardon clause in the Constitution to moderate the awesome powers of the criminal law. As Alexander Hamilton put it in the Federalist, without the pardon power “justice would wear a countenance too sanguinary and cruel.” The lot of Trump’s pardons, however, are not about anything so grand. Some look deserving, even if traditional processes (including Justice Department review) were thrown out the window. But the bulk of them falls far short of what the pardon power is all about. On Tuesday night, he pardoned Stephen K. Bannon, who was charged (yes, you can’t make this up) with defrauding Trump supporters to raise money to build the border wall. Trump also pardoned Elliot Broidy, a major Republican fundraiser, for working as a foreign agent and saying he could make a massive investigation into Malaysian corruption go away. And the notion that he was some sort of criminal justice crusader is laughable — Trump had a paltry number of acts of clemency compared to most of his predecessors and before this last batch of pardons, Trump had granted less than 0.5 percent of requests, the lowest number of any president on record.
These final pardons do not arrive shorn of history here. Trump’s prior pardons, like Tuesday’s, largely fall into two buckets. Bucket 1 is friends of Donald Trump — people like Roger Stone, George Papadopoulous, Paul Manafort, Charles Kushner (yes, Jared’s dad) and Michael Flynn. These folks never even bothered formally requesting a pardon; they got one through back channels to the Oval Office. Bucket 2 are rogues who aspire to be in Bucket 1 — people like Dinesh D’Souza and former Maricopa County, Ariz., sheriff Joe Arpaio. The conservative Harvard Law School professor Jack Goldsmith examined all of Trump’s pardons before his final days in office and found a whopping 91 percent of them went to people with personal or political connections to Trump. An outsize number of Trump’s pardons were for white-collar criminals, revealing again Trump’s proclivity to benefit those who look and act like him. For decades, criminal justice had been moving in the direction of greater parity between white-collar and other offenders, only to have Trump come along and reverse the trend.
When pardons are largely reserved for friends and family, bad things are invariably going to follow. Witness the recent report of a cottage industry of present and former Trump aides and lawyers selling access to the White House to obtain pardons. One has to wonder what promises and subtle winks were exchanged in the extensive cash-fueled lobbying efforts that went into these pardons. While the president’s pardon power is virtually unlimited under our Constitution, one limit is bribery. The Justice Department has opined that the criminal prohibitions on bribery are available against the president, which may explain why there was an extensive investigation into President Bill Clinton’s last-minute pardons. But the allegations against Clinton were retail, involving a handful of incidents; the ones against Trump appear to be more of the Costco wholesale variant.
True, Trump did not pardon members of his family or those in the Trump Organization. Both potentially face very serious criminal investigations, including some investigations that have been going on for years, including in the Southern District of New York. This wasn’t an uncharacteristic act of high-mindedness, though: Trump had to know that pardoning these individuals would eliminate the hope they could refuse to testify by invoking the Fifth Amendment — at least unless there was a counterpart state crime that they could be charged with. And of course, the fact that there are ongoing state and local investigations into Trump and his family made such pardons largely futile; they would just embolden those prosecutors, who can’t be stopped by a Trump pardon, to double down on their efforts.
For the same reason, Trump’s decision not to pardon the insurrectionists from last week, despite attempts by several of them to secure his help, is deserving of little more than a slow clap. Pardoning the insurrectionists would have inflamed Congress at a time when Trump has already been impeached and is about to stand trial. (Indeed, the impeachment was not only intrinsically justified by the deepest of reasons, it also has served the salutary purpose of cabining Trump’s excesses in his last week in office, due to his impending Senate trial.) And giving the insurrectionists pardons would have also freed them up to testify in the impeachment trial — or in a criminal trial for incitement once Trump leaves office — as they would then face big difficulties in invoking the Fifth Amendment, too.
Finally, Trump gets no credit for refraining from pardoning himself. The Justice Department opined in 1974 that presidents cannot do that. We have no idea what the acting attorney general said about this, but reports indicate that William P. Barr, before he resigned as attorney general, wanted to know nothing about what Trump was doing on pardons. (Profile in courage, to be sure.) A self-pardon for Trump would run afoul of the text of the Constitution, which speaks of “grant[ing]” pardons. Trump likes to speak of himself in the third person, but it defies English to think that a pardon can be “granted” to oneself. A self-pardon would also defy 400 years of Anglo-American law, starting with the key principle of English law in “Dr. Bonham’s Case” that no person can be a judge in their own trial. Had he tried to pardon himself, it would have just encouraged the Justice Department to test that move in court, and Trump would likely have lost.
As Trump prepares to leave office at midday Wednesday, he will face many judges — in federal court, in state court and in the eyes of history. His grotesque pardon decisions in the final hours of his term will be judged by all. And that judgment will not be sparing.