National Post (National Edition)
THE PRESIDENTIAL INAUGURATION,
Measure was first designed for `tranquillity'
U.S. founding father Alexander Hamilton had high hopes for a constitutional provision that gave presidents the power to pardon criminals.
In times of unrest, he argued, pardoning even treason might “restore the tranquillity of the commonwealth.”
But rather than tranquillity, the power's use by presidents over the centuries has routinely provoked controversy and vilification. Gerald Ford's approval rating sank 20 percentage points when he pardoned Richard Nixon; Bill Clinton is still condemned for doing the same for fugitive billionaire Marc Rich.
Donald Trump has continued and, by many historians' accounts, greatly expanded that tradition of contentious pardons, bestowing the privilege on a slew of cronies convicted, often, for work on his behalf, celebrities who broke the law and even alleged war criminals.
The U.S. braced Tuesday for a final wave of clemency announcements, with speculation Trump might even pardon himself in advance of possible prosecution.
The open-ended nature of the constitutional power means other presidents have issued “bad pardons,” but none have done so as frequently as the current president, argues Tim Naftali, a presidential historian at New York University and former director of the Nixon presidential library.
“Donald Trump has taken the abuse of pardoning power to a huge new level,” said the Montreal native. “Previous presidents have had one-offs, or maybe threeoffs, but Donald Trump has made a habit of issuing pardons to cronies without any regard to the general reason for the power in the first place.”
It's a judgment call whether the president has wielded the authority in a good or bad way, said Michael Conklin of Angelo State University in Texas.
But in terms of controversy, he said, “It's safe to say, on average, Trump's (pardons) are an anomaly.”
Canada also has pardons — now called record suspensions — but they have become a largely bureaucratic process, with eligibility guidelines set out in law and the National Parole Board, not politicians, vetting the applications.
There is a similar function in the U.S. Department of Justice, but those officials only make recommendations. Clemency is issued by the president under a constitutional section that applies to any federal crime except impeachment.
The idea, dating back to 7th century England, when sovereigns handed out the perks, is to address injustices in exceptional cases. To ensure, in Hamilton's words, that justice is not “too sanguinary and cruel.”
But from early in American history, the result could be controversial.
George Washington pardoned organizers of the “Whiskey Rebellion” against liquor taxes that required a militia of 13,000 to quell. Andrew Johnson pardoned Jefferson Davis, former president of the Confederacy, only three years after the U.S. Civil War.
Richard Nixon commuted the sentence of Teamsters boss Jimmy Hoffa for fraud and jury tampering in 1971, and later considered offering the burglars at the Democratic National Committee's Watergate building pardons as part of his cover-up of the affair.
Three years later, Gerald Ford was castigated for pardoning Nixon himself over Watergate.
Controversy continued with Jimmy Carter offering blanket clemency to Vietnam War draft dodgers, while George H.W. Bush pardoned former Reagan administration colleagues involved in the Iran-Contra Affair.
Clinton pardoned Rich and brother Roger Clinton — who had finished his sentence on drug charges a decade earlier — as part of a list of 450 issued on his last day in office.
Still, there were 22,485 executive sentence commutations and clemencies from 1900 to 2017 and, despite the aura of scandal and controversy, most have been relatively innocuous, notes Naftali.
That may have changed under Trump. Before Tuesday, he had issued only 94 pardons or commutations — compared to Barack Obama's 1,400 — most of which were associates or other contentious choices, many involved in the Russia-influence investigation, which the president called a “witch hunt.”
They include Michael Flynn, the former National Security Adviser who pleaded guilty to lying to the FBI, adviser Roger Stone, convicted of various offences including witness ta mpering, and former campaign director Paul Manfort, jailed for tax and bank fraud and other crimes.
A few acts received wide praise, such as a posthumous pardon for women's suffrage leader Susan B. Anthony, convicted of voting illegally in 1872.
But Trump has also stood out by pardoning those involved in alleged human rights abuses, said Andrew Novak, law professor at George Mason University in Fairfax, Va.
They include four operatives of the Blackwater private security company, which had been owned by a Trump confidante, convicted of murder or manslaughter for shooting and killing 14 Iraqi civilians in a notorious 2007 incident in Baghdad. The president granted clemency, as well, to service members convicted or charged with murder and other offences overseas.
But can Trump actually pardon himself, as he has reportedly talked about with aides, and survive a court challenge?
Naftali says no, and notes that Nixon received similar advice when he considered using the power that way. But a survey of 95 academic experts by Angelo State's Conklin found sharply divided opinions on the issue. The consensus was that the law barred self-clemency, but the professor himself disagrees.
“For good or bad, when I read the constitution, it's pretty clear that it gives him that power,” he said. But even it were to happen, Trump could still face civil lawsuits, impeachment and criminal charges under state law, Conklin noted.
“It's not really that big of a deal.”