Should Presidents Be Able To Grant Clemency Without Checks and Balances?
By: M Baqir Mohie El-Deen, MPAC Policy Program Manager
This week, the White House announced a wave of lame duck presidential pardons. Included in these pardons was George Papadopoulos, Trump’s former foreign policy campaign aide who was found guilty in the Mueller investigation. Trump also pardoned Charles Kushner, his son-in-law Jared’s father, former US Congressmen Duncan Hunter and Chris Collins, and Roger Stone. Furthermore, the four Blackwater guards involved in the Iraq massacre that took place in Nisour Square in 2007, and the two border patrol agents that shot at unarmed undocumented immigrants were also granted full clemency. The President is expected to pardon more people before his term expires in a few weeks.
Presidential pardons aren’t a rarity; in fact, President Trump may go down in history for granting the least amount of pardons since President William McKinley. President Obama granted over 1,900 clemencies during his 8 years in office, while President Trump has granted less than 100 clemencies — although his presidential term is far from over. However, President Trump’s approach is starkly different from that of other presidents in that he grants clemency in order to support those in his inner political and personal circle. Consider, for example, the four Blackwater guards who claimed the life of 16 innocent people, including women and children, during the Iraq massacre. They worked for the brother of Betsy DeVos, who served as the Secretary of Education throughout Trump’s term in office.
What are and where did presidential pardons come from?
The power of pardon has its roots in early English law, which granted the King the authority to grant mercy. This authority later migrated across the Atlantic Ocean with the pilgrims. Other scholars trace it as far back as ancient Greece. In our constitution, Article II, Section 2 gives authority to the President “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The only limitations in the constitution for presidential pardons are that a president may grant pardons only for federal crimes, and cannot pardon impeachment convictions. The Supreme Court has also ruled that a pardon cannot be issued to cover crimes that haven’t been committed yet.
The President has the power to grant several forms of relief from criminal punishments. A full pardon, the most common form, completely obviates the punishment for a committed or charged criminal offense. The second most common form, commutations, reduce the penalties associated with conviction. As an example, if a person is serving 20 years in federal prison, a president can commute the term to only 10 years. Other forms include amnesty, remission of fines and forfeitures, and reprieve, whose applications can read in further detail here.
Does the power of the president to pardon need to change?
Pardons are a form of mercy. We start our recitation of the Holy Quran by calling out to our All-Merciful Lord, and God tells us,“My mercy embraces everything” (Quran, 7:156). We are taught that we should have mercy on others for when our time comes to face God, He will grant us with his mercy. The power of pardons comes from the same notion, that the President, who serves in the United States’ highest seat of power, has the authority to grant mercy unto those who may have faced an unfair trial, or for whom new evidence has called into question a previous conviction. Another reason, perhaps more salient now than in years past, includes the evolution of law which decriminalizes actions the prosecution of which landed one in jail. Many presidents utilize their power to pardon during their lameduck session, during which time they have nothing political to lose. Since they are not seeking reelection, pardons offer a way to make good where public opinion would have otherwise changed the circumstance. These important considerations necessitate the presidential pardon. However, its contemporary application is a far cry from its historical basis.
In light of this, the Founding Fathers’ system of checks and balances appears prescient. They knew that, to make America a great nation that can survive generations, they would need to curtail executive authority. Alexander Hamiltion said
“The truth is that all men having power ought to be mistrusted. In framing a government, which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”
Founding Father George Mason vehemently opposed granting the president the power to grant clemency at will. At the Constitutional Convention of 1788, he argued that the president
“ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”
We now live in an era in which our Presidents use their authority to release criminals that have committed atrocities around the world. No political authority should ever pardon anyone who commits war crimes. Although presidents in the past may have misused the power to pardon, none have done so as thoroughly as President Trump, and this may set a dangerous precedent for future presidents. As of Tuesday, 60 out of the 65 pardons and commutations that Trump offered were to people that have personal or political ties with him. Mercy is an important concept for humanity to prevail, but let’s not conflate giving mercy with the achievement of justice. Those that have committed harsh crimes owe it to society that they face justice. It is at the victims’ discretion to forgive those that have oppressed them, and not the discretion of the head of state. The victim may decide to advocate for the oppressor to be granted clemency, but even then, justice is owed to society as a whole.
It is high-past time that we amend our constitution to offer a degree of checks and balances on the presidential pardons. For we are a republic, and no person is above the law, regardless of who they may know, or who they are related to. President Trump’s envy of dictators is no secret, and his pardon spree is a page out of tyrants and dictators’ books. George Mason warned us that the power to pardon may lead to a monarchy one day, and his words ring true today more than ever before. We owe this amendment to the victims of those pardoned this week, which include 9-year-old Iraqi Ali Alkinani. We owe it to the Republic.