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AMU Homeland Security Legislation Opinion Original

The Controversial Use and Abuse of Presidential Pardons

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Garth Brooks’ megahit song “Friends in Low Places” and James Taylor singing about showering the people you love with love may be metaphors for recent presidential pardons. The proverb “It’s not what you know. It’s who you know,” also applies to the pardons given by President Trump, especially during his last days in the White House.

The Constitution Gives the President the Power to Grant Pardons

The Constitution, Article II, Section 2, Clause 1, states that the “President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment.” Presidential pardons are limited to federal criminal offenses and thus do not protect individuals from being tried in state criminal courts.

The Difference between a Pardon and a Commutation

According to Merriam-Webster, a pardon is “an act of grace and mercy that excuses a criminal offense without exacting a penalty.” If a pardon occurs before a federal criminal conviction, the charges are dismissed and no penalties are permitted. If a pardon occurs after a federal criminal conviction, it removes the sentence and other penalties associated with the conviction.

A pardon is different from a commutation, however. A commutation involves changing a legal penalty or punishment to a lesser one.

For example, President Trump commuted the sentence of Carolyn Yeats, a first-time, non-violent drug offender, who served seven years of a 20-year sentence. Ms. Yeats will be released from prison due to Trump’s commutation, but she will still have the federal conviction on her record.

Controversial Presidential Pardons

There have always been controversial presidential pardons, but at what point does the use of the President’s pardon power become an abuse of power? Does the power to pardon allow for self-serving acts by a president in order to directly benefit that president? The power to pardon, if misused, may directly impact ongoing criminal investigations that could implicate a sitting president or those close to him.   

Trump’s Presidential Pardons

President Trump issued 144 presidential pardons or commutations the day before he left office. The breakdown included 74 pardons and 70 commuted sentences.

The list included Trump’s former chief strategist and longtime friend Steve Bannon and venture capitalist Elliott Broidy, a former mega-fundraiser for Trump. Bannon’s case was pending trial for wire fraud and money laundering conspiracy charges, stemming from his misuse of hundreds of thousands of dollars that he illegally used for personal expenses.

President Trump also pardoned or commuted the sentences of 93 others during his administration for a total of 237 pardons and commutations during his four years in office. The prior lists included Charles Kushner — the father of Trump’s son-in-law Jared Kushner — and other wealthy people connected to Trump, his family, and his friends.

While all modern-day presidents have used their pardon powers, were recent uses of pardons an abuse of the presidential office and a misuse of the constitutional power?

President Trump’s controversial pardons included members of his administration, 2016 presidential campaign, friends, and friends of friends. For instance, Trump pardoned retired Army Lieutenant General Michael Flynn, who worked on Trump’s campaign and later served as Trump’s National Security Advisor. Flynn pleaded guilty to lying to the FBI and agreed to assist with its ongoing investigation that included Trump and others within the administration. The pardon was widely criticized as a way of Trump encouraging Flynn to backtrack on his agreement to help federal investigators for fear that it may implicate Trump in criminal wrongdoing.

Trump also pardoned former campaign aide George Papadopoulos, who was found guilty of lying to federal investigators who were investigating the Trump campaign. Papadopoulos was a campaign aide to Trump during the 2016 presidential election.

The charges stemmed from meetings Papadopoulos had with a professor with ties to Russia and a female Russian national. Critics of the pardon argue that Trump’s presidential pardon was done in an effort to roll back the investigation into Russian interference into the 2016 presidential election.

Finally, President Trump pardoned Kenneth Kurson, a close friend of Jared Kushner and an associate of Trump’s personal lawyer Rudy Giuliani. Kurson was charged with federal cyberstalking and harassment of his wife and several doctors during a heated divorce. The cyberstalking included Kurson filing false complaints against the doctors that stated those doctors had improper contact with minors.

Clinton’s Presidential Pardons

President Bill Clinton issued several controversial and potentially self-serving pardons. For instance, President Clinton pardoned his brother, Roger Clinton, who was convicted of federal drug charges. 

An even more controversial pardon was issued to Marc Rich. Rich was a fugitive banker and political ally living in Switzerland who was facing over 50 counts of federal tax fraud exceeding $48 million. Rich was also discovered attempting to smuggle incriminating documents out of the United States so they would not be seized by law enforcement.

The controversy stemmed from the fact that Rich, through his former wife Denise Rich, donated close to a half a million dollars to the Clinton Library and to Clinton’s legal defense fund. Rich’s ex-wife also gave expensive furniture to President and Mrs. Clinton at the end of his presidential term.

The pardon of Rich was divisive and highly criticized by many people, including former President Carter. Carter said of the pardon, “I don’t think there is any doubt that some of the factors in his pardon were attributable to his large gifts. In my opinion, that was disgraceful.”

Ford’s Presidential Pardons

When President Gerald Ford pardoned former President Nixon in September of 1974, the pardon was widely condemned due to Nixon’s criminal actions involving the Watergate scandal. Ford, however, used the power to end the national divisions created by the scandal.

Years later, Ford received the Kennedy Library Foundation Profile in Courage Award for his pardon of Nixon. The Foundation awarded President Ford the Profile in Courage Award because he placed his love of the United States over his political future to help the country heal from Nixon’s crimes. Ford narrowly lost the 1976 election to Jimmy Carter, and many believe Ford’s pardon of Nixon led to his demise.

The Legality and Morality of Pardons

Is it illegal when presidents pardon family members, friends, friends of friends, or those people whose actions directly benefit the president, either by supplying funds or to escape possible federal investigation and prosecution? The current answer is no, as the power for a president to grant a pardon is broad and nearly unlimited.

It is doubtful, however, that it meets the intent of the framers of the Constitution, who included the power to pardon as one of the duties of the president. It is also not a partisan political issue, as presidents from both major parties have shared in the controversy. 

Preventing the Abuse of a President’s Pardon Powers

Should the power of presidential pardons be limited or taken away? Limiting or eliminating the presidential pardon powers would require amending the Constitution. Members of Congress have proposed amendments in the past few years. 

For instance, Representative Steve Cohen, a Democrat from Tennessee, introduced a joint resolution with 16 House cosponsors, proposing a constitutional amendment that would prohibit “the President from granting a pardon or reprieve to himself or herself, to certain members of the President’s family, to members of the President’s administration, or to paid employees of the President’s presidential campaign.” The proposed amendment was referred to a House subcommittee but was never acted on.

Ultimately, it is unlikely that an amendment to eliminate or limit presidential pardon powers will ever be seriously considered. But given past presidents’ use or misuse of the power, presidential pardons will continue to be a hotly debated topic.

Kerry L. Erisman is an attorney and associate professor of legal studies with American Military University. He is a retired Army officer who previously served as an Army military police and later as a prosecutor, chief prosecutor, and defense attorney. Kerry writes and teaches on important criminal justice issues and military spouse issues including leadership, critical thinking, and education.

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