Robbins: The exercise and origin of the presidential pardon
Yet again, the president has lots of noses out of joint.
This time, owing to his recent rash of pardons and sentence commutations— former New York police commissioner Bernard Bailey Kerik, junk bond king Michael Milken, and disgraced former Illinois governor Rod Blagojevich, among them. Didn’t this president claim just a short impeachment trial ago that he was a corruption fighter and that’s what the Ukraine brouhaha was all about?
No doubt this president has wielded the presidential pardon power like a scythe in a wheat field.
Looking back at just a few of the more controversial get-out-of-jail-free cards this president has dealt, one may count rightwing former Maricopa County Sheriff Joe Arpaio and Scooter Libby, the former adviser to Vice President Dick Cheney. Libby was convicted of obstruction of justice, perjury, and making false statements. Also on the list? Campaign fraudster Dinesh D’Sousa and United States Army Major Matthew Golsteyn who was charged with murder and sprung by the president over the vigorous objection of the military.
To this rouges gallery may soon be added dirty trickster, Roger Stone, former Trump National Security Adviser Michael Flynn, who pleaded guilty to statements to the FBI regarding conversations with Russian authorities, and Paul Manafort, the multiply-convicted former Trump national campaign chair. One may note, without the slightest bit of irony that what all of these swamp creatures all have in common is their cronyism with the president.
While the number of pardons granted by this president is not historically significant — four-term Franklin D. Roosevelt granted the most — the partisan and political way in which they have been (and threaten to be) wielded has, at the least — raised eyebrows.
Is this how it is supposed to be?
As they crafted the Constitution, the Framers understood that a president might abuse the pardon power. But, Hey, they thought, impeachment will protect us against that potential abuse. James Wilson, a Founding Father from Pennsylvania who argued for the pardon power, said, “If [the president] himself be a party to the guilt he can be impeached and prosecuted.” James Madison, the father of the Constitution, agreed.
Hmmm. But maybe, not so much. In this partisan age in which we live where the Senate impeachment trial wasn’t by any normal standards even a trial, it is hard to see where the guardrails are emplaced.
I think most lawyers, legal scholars, and others enmeshed in the law would agree that a “trial” absent either witnesses or the presentation of documentary evidence is akin to a game of basketball without the hoop. Without a hoop, it’s sort of easier to dunk.
How did we get here?
All of this begs the question from where does the president’s power to pardon derive? What was its original intent? How and when can it be wielded?
The presidential power to pardon is a vestige of the British monarchy from which the roots of our revolution sprung and, ultimately, from which our democracy flourished. By its very definition, pardoning circumvents the traditional legal system. As such, the pardon power has always posed a threat to the normal course and conduct of the law.
When the kings and queens of the empire were truly kings and queens instead of merely gossiped-about figureheads, they wielded almost unfettered powers, among them the right to spare the head of whoever struck their royal fancy. The British monarchial power dates back to at least the seventh century and from there, may be traced even further to amnesties granted by the Greek, Roman and biblical kings. As the 18th century English poet, Alexander Pope, observed, “To err is human, to forgive, divine.” When the kings weren’t themselves akin to gods, the gods at least whispered in their ears.
In short, the power to pardon is neither something new nor something unique to the United States.
When the founders were fashioning our Constitution and were debating, pondering, cogitating and arguing over what shape it should take, they did not do so out of whole cloth. They considered what had worked in other times and other cultures. And like a rapacious neighbor knocking on your door for a pinch of this and dash of that, they borrowed heavily. Sure there were innovations but not everything was exactly “made in America.”
One of the varied things that popped up was pardons. If not to be exerted by the king — as the United States would have no king — should pardons be available to the chief executive? As it turned out, of course, the answer ultimately was “yes.”
Room for exceptions
The presidential pardon is enshrined in Article II, Section 2 of the Constitution. Like so much in our founding instrument, it is a model of brevity, holding that the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
Alexander Hamilton explained the reasoning in Federalist No. 74: “Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor or unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Although this may seem a bit bloviating to modern ears, in short, what Hamilton was saying was that it was the right thing to do, that exceptions should sometimes be made.
In theory, anyway, the power is almost without limits; there are only two express constraints. First, the offense to be pardoned must be one “against the United States.” Thus federal crimes but not state crimes may be pardoned by the president. Second, one impeached may not be thrown the life ring of a pardon.
While the president certainly has the power to pardon, the question of propriety remains. Is what was intended by the framers and ensconced in the U.S. Constitution an unfettered right to pay back political favors, forgive corruption, and reward blind loyalty? Should the Constitution be employed as a blunt tool to bludgeon the rule of law? How far will this Congress let this go?
As doctors like to say, “watchful waiting” may be the holiest prescription.
Stay tuned. And stay awake. Absent vigilance, the ground of democracy may become quickly acrumble beneath our feet.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com.