THE PRESIDENT AND HIS POWER TO PARDON

The Constitution assigns to the president the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

On its face, this authority appears unquestionable, and the Supreme Court has called it “unlimited.” But in his more than two years in office, President Donald Trump has found ways to wield or dangle the pardon power in a manner that departs from any established practice and even calls into question the principles of justice that undergird it.

The full pardons of Conrad Black, a wealthy friend of Trump’s who has written charitably about him, and Patrick Nolan, a former Republican Assembly leader from California who has criticized aspects of the Russia investigation, are the latest examples in what seems to be a new trend in presidential clemency: mercy for lawbreakers in the mold of disgraced politicians, media personalities and political allies who have flattered, defended or curried favor with the president.

Then came news that the president may mark this Memorial Day with pardons for outlaws in a category all their own — war criminals. The New York Times reported Saturday that Trump has asked the Justice Department’s pardon unit to begin processing paperwork for what could be serial pardons for service members accused or convicted of war crimes. This month, Trump already pardoned Michael Behenna, a former Army lieutenant who was court-martialed and convicted of killing a detained Iraqi man whom he was interrogating. The American Civil Liberties Union said the pardon represented “a presidential endorsement of murder.”

This may leave you asking: What have these people done to merit a presidential pardon?

Black, whose pardon the White House announced late Wednesday, had the backing of Rush Limbaugh and Henry Kissinger, among others. But the erstwhile media mogul, who was convicted of fraud and obstruction of justice and served more than three years in federal prison, may have made the best case for himself by writing a hagiography, “Donald J. Trump: A President Like No Other,” which contained no shortage of praise for its subject.

Nolan, for his part, was implicated in what The Los Angeles Times called “one of Sacramento’s most notorious political corruption cases,” for which he served 26 months in prison. Nolan received an assist from The American Spectator, a right-leaning publication, which in 2018 published an article that urged Trump to pardon him. The Spectator’s argument suggested that Nolan merited a pardon because he was, in the eyes of the writer, wrongly convicted and because of his work as a longtime advocate for criminal justice reform. It went on to echo Nolan’s previous remarks, calling the Mueller investigation a “promiscuous witch hunt” and accusing officials at the Justice Department of improprieties.

It’s a pattern seen in the pardons for Joe Arpaio, the former Arizona sheriff and ardent Trump supporter who was convicted of criminal contempt for refusing to comply with a court order to obey the Constitution; Dinesh D’Souza, the provocateur who was convicted of campaign finance violations by the office of Preet Bharara, the U.S. attorney in New York whom Trump unceremoniously fired and D’Souza has accused of selective prosecution; and Scooter Libby, a former aide of Vice President Dick Cheney convicted of perjury and obstruction related to the outing of a CIA officer.

In these and other cases, claims of injustice, unfairness and overreach by the Justice Department have driven the calls for mercy. Powerful intermediaries, such as elected officials, have pressed the issue with the president. On one occasion, the invocation of the Hillary Clinton email scandal on “Fox & Friends” seemed to have sealed the deal for one of the pardoned, Kristian Saucier, whose case the president had already championed during the 2016 campaign.

The way Trump has invoked his pardon authority has not gone without scrutiny. In his obstruction of justice investigation of the president, Robert Mueller, the special counsel, examined numerous episodes where the prospect of a presidential pardon appeared designed to influence the conduct of witnesses or associates of the president, such as Paul Manafort and Michael Cohen.

Mueller recognized that Congress can’t put limits on the pardon power. He rejected, however, the notion that how the power is used is immune from legislative oversight. “The offer of a pardon would precede the act of pardoning and thus be within Congress’ power to regulate even if the pardon itself is not,” Mueller wrote in his report. One bill before Congress, introduced by Rep. Adam Schiff, D-California, the Intelligence Committee chairman, aims to discourage the misuse of pardons by shedding sunlight on how they are procured and processed. Pro-democracy advocates support the legislation.

President Bill Clinton’s 11th-hour pardon of the fugitive financier Marc Rich caused its share of controversy and even led to congressional and criminal inquiries in 2001. At the time, The Times reported, senior government officials in the Bush administration said “the investigation would try to determine whether anyone acting on behalf of Rich in effect sought to buy his pardon or obtain it by fraudulent misrepresentation.” It is past time for Congress to display a more robust appetite for exploring this president’s use of the pardon power — if only to assure the public that he is pursuing his constitutional duties rather than his political interests.