January 29, 2021
A Look at Presidential Pardons
Was the sound and fury about the pardons issued by then-President Donald Trump merited?…
”This is rotten to the core.” – Republican U.S. Senator Ben Sasse on Donald Trump’s pardons, December 23, 2020
“A misuse of executive clemency that runs from bad to worse… Trump’s latest pardons and commutations are nauseating.” – Washington Post, December 23, 2020
“Trump’s corrosive use of the pardon power… [is part of what] will cement his presidency as one of the most unjust in history.” – NBC News opinion piece, December 23, 2020
Trump is not unique in arousing popular ire for his approach to pardons…
But he was – not surprisingly – norm-busting in his approach, as the New York Times explained on January 27…
Of the nearly 240 pardons and commutations issued by Mr. Trump, only 25 came through the rigorous process for identifying and vetting worthy clemency petitions overseen by the Justice Department… The other pardons and commutations came through an ad hoc White House process that favored applications benefiting or pushed by Mr. Trump’s allies, friends, and family.
Some of the greatest hits of Trump’s lame-duck pardon-palooza of recent weeks include:
- Charles Kushner (Trump’s son-in-law Jared Kushner’s father) who was in prison for two years for witness-tampering and tax evasion
- Several former Republican Congress members convicted of fraud and financial misdeeds
- Military contractors who were convicted of killing unarmed civilians in the Iraq war
- Former White House strategist Steve Bannon, who was waiting to go on trial for defrauding people who donated upwards of $1 million to crowd-fund a border wall…
- And a former nursing-home executive who, according to the New York Times, “orchestrated one of the biggest Medicare frauds in United States history.”
And that’s just scratching the surface…
Presidential pardons have been around since the early days of the republic, with George Washington issuing the first one in 1795 by excusing two men who participated in the Whiskey Rebellion protest.
Then, on Christmas Day in 1868, President Andrew Johnson fully pardoned every soldier who fought for the Confederacy during the Civil War. Another mass pardon occurred when President Jimmy Carter pardoned 200,000 draft resisters from the Vietnam War.
Carter also pardoned Paul Yarrow – of folk-rock group Peter, Paul and Mary – who’d served three months in jail for “behaving indecently” towards a fan… who was 14 years old.
Of course, many presidents have stained their legacy – as the White House door is hitting them on the way out – with at least a handful of pardons… By pardoning impeached outgoing-president Richard Nixon shortly after assuming the presidency in the wake of the Watergate scandal, Gerald Ford started off his time in the White House with a black eye, one arm tied behind his back, and his shoelaces tied together. Ford’s pardon of Nixon helped doom him to lose the White House in the next election.
Similarly, any discussion of Bill Clinton inevitably includes his controversial pardon of fugitive financier Marc Rich. (Clinton himself later expressed regret for issuing the pardon, saying, “It wasn’t worth the damage to my reputation.”)
But in the scope and nature of his approach to granting pardons, Trump took a sledgehammer to custom and tradition. It seems he applied his constitutional prerogative far beyond the extent envisioned in the Constitution… and mostly as a way to bestow favors upon friends – thereby further exacerbating the pervasive inequality of the judicial system.
And it may well have been – if suspicions are wrong that cash exchanged hands for pardons, for example – that Trump didn’t break the letter of the law in his issuance of pardons.
If nothing else, Trump thrives in the gray areas on the edge of illegality, where he breaks the rules in ways that are difficult to pin down, or where he violates the spirit of the law while tiptoeing on the edge of the letter of the law. It’s that space where he can funnel government business to his hotels, install relatives in government positions, encourage a foreign government to investigate a political rival… all without ever getting in real trouble over it.
Recommended Reading: Prepare for a ‘Cash Panic’
We’re at the very beginning of a mass financial panic – but not the kind most people expect. The words “mania,” “euphoria,” and “frenzy” are all over the press… while fund managers are STAMPEDING out of cash at record levels – and pumping billions of dollars into a specific corner of the markets. A dramatic financial event over 20 years in the making has finally begun. Here’s what it means for YOUR money.
And it’s a similar story with pardons. An important feature – or glitch, depending on which side you’re on – of the Constitution is that the founding fathers were skimping on detail when it came to the powers assigned to the president. Congress gets more than twice the word count in the Constitution (in Article II) than the executive branch gets in Article III. (The American government equivalent of the chubby kid in brown corduroys with crooked glasses – that’s the judicial branch, of course – gets just one-third the word count of the executive in the Constitution.)
And the part about pardons in the Constitution doesn’t even get its own sentence. It’s wedged into the first paragraph of Section 2, Article II – lumped together in the same sentence declaring that the president is the commander in chief.
If there had been a high-school English teacher among the drafters of the constitution, he would have insisted – at a minimum – on a new paragraph to introduce what’s a completely different idea that’s expressed like this:
… [the President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
And that’s it… 20 words that have been misinterpreted and reinterpreted and twisted so beyond recognition that it makes hermeneutics – the study of interpreting the Bible – seem as cut and dried as old beef jerky.
Also contrary to frenzied anticipation, Trump didn’t pardon himself, or children Don Jr., Eric, Ivanka, or son-in-law Jared Kushner… or members of the dirty-hands club around the president like Rudy Giuliani.
But even if he had tried to self-pardon… it might not have broken the history books, because it’s already been (kind of) done.
Rewind to the Ronald Reagan era, and the Iran-Contra affair, in which the U.S. secretly traded arms to Iran to free Americans held hostage by terrorists in Lebanon – and also funneled funds to anti-government guerillas in Nicaragua. Secretary of Defense Caspar Weinberger, according to entries from his own diary, was neck-deep in the various deals that became a scandal once they came to light. And, according to those same diaries, so was then-Vice President George H.W. Bush.
Daddy Bush, though, had testified under oath that he was shocked, shocked! (to channel the famous line from Casablanca) that there was something untoward going on under his nose. But it was pretty clear that he was as tarnished as Captain Renault (see the video) – thus potentially perjuring himself. Which, by the way, is a felony.
Conveniently, though, H.W. succeeded Reagan. And in the fading days of his presidency – wait for it – Bush granted Weinberger a pardon. As the History News Network explains,
In pardoning Weinberger, Bush was able to keep his activities secret, and in effect give himself a pardon. Was this the first presidential self-pardon? In a way, yes.
Back to present day… So Trump didn’t pardon himself – or did he?
There’s no requirement that the president’s pardons be made public (another caveat that didn’t make the Founding Fathers’ cut). Of course, any decisions made by the president, like pardons (and everything else), are supposed to be documented… And those records are filed with the National Archives.
That’s the theory, at least. There’s no real enforcement mechanism for this process. And not filing a pardon would not detract from its effectiveness. A pardon that’s issued but not reflected in the public record would still be as valid as the public pardons that sparked some of the quotations at the top of the article.
What this means is there may be members of Trump’s entourage (or anyone else) who have the ultimate victory should they be indicted, as CNN explained in late December…
[Trump could]… issue pardons in secret to those whose pardons either he or the recipients do not want in the public record. A secret pardon would enable them or others to keep clemency in their back pocket… while at the same time avoiding the uproar that would undoubtedly come with a public pardon announcement.
No one should be surprised if he issues pardons before he leaves office that never see the light of day unless the recipient is investigated or prosecuted.
It’s like a Christmas gift that somehow got lost under the tree, that you don’t see until much later… a Trump surprise, waiting to be opened.
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Executive Editor, American Consequences
With Editorial Staff
January 29, 2021