• Home
  • Opinion
  • Quizzes
  • Redistricting
  • Sections
  • About Us
  • Voting
  • Events
  • Civic Ed
  • Campaign Finance
  • Directory
  • Election Dissection
  • Fact Check
  • Glossary
  • Independent Voter News
  • News
  • Analysis
  • Subscriptions
  • Log in
Leveraging Our Differences
  • news & opinion
    • Big Picture
      • Civic Ed
      • Ethics
      • Leadership
      • Leveraging big ideas
      • Media
    • Business & Democracy
      • Corporate Responsibility
      • Impact Investment
      • Innovation & Incubation
      • Small Businesses
      • Stakeholder Capitalism
    • Elections
      • Campaign Finance
      • Independent Voter News
      • Redistricting
      • Voting
    • Government
      • Balance of Power
      • Budgeting
      • Congress
      • Judicial
      • Local
      • State
      • White House
    • Justice
      • Accountability
      • Anti-corruption
      • Budget equity
    • Columns
      • Beyond Right and Left
      • Civic Soul
      • Congress at a Crossroads
      • Cross-Partisan Visions
      • Democracy Pie
      • Our Freedom
  • Pop Culture
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
  • events
  • About
      • Mission
      • Advisory Board
      • Staff
      • Contact Us
Sign Up
  1. Home>
  2. Balance of Power>
  3. pardons>

Abused pardon power: One of the bigger problems Trump's leaving behind

Stanley J. Marcuss
January 19, 2021
Roger Stone

If you're a Trump crony, like Roger Stone, crimes are not really crimes, writes Marcuss.

Brendan Smialowski/Getty Images
Marcuss, a retired partner at the law firm Bryan Cave and a former senior fellow at Harvard's Kennedy School, is on the steering committee of Lawyers Defending American Democracy.

The president's pardon power is thought by many to be virtually unlimited. As he heads out the door, President Trump's pardoning of criminals who lack remorse and cronies who lack conscience challenges us to reexamine that belief.

The unadorned words of the Constitution seem to place no limits on the pardon power except in the case of impeachment. But skeptics may be forgiven for asking why the Constitution should permit pardons for murderers, thieves, tax-cheats, fraudsters and secret foreign agents — or those who have obstructed justice, lied to the FBI, abused immigrants, used campaign and corporate cash for improper purposes, disguised personal expenditures as charitable contributions and used prostitutes to entrap enemies.

Pardons like these undermine the entire criminal justice system. If you're a Trump crony or someone who obstructed justice to protect him, crimes are not really crimes. They are a sordid badge of honor.

There are two systems of justice in this country, one for the rich and well-connected and the other for everyone else. Trump's pardons create two more categories, one for those in the president's favor and another for those who are not. Criminals in the president's favor go free. The rest end up in jail. There is little wonder why cynicism runs rampant.

Sign up for The Fulcrum newsletter

Cynicism will be one of the lasting legacies in Trump's parade of horrors. And it pervades much more than the administration of justice.

Consider: Use of the White House to enrich the president and his family, use of the Justice Department to protect the president personally and punish the president's enemies, interference with congressional oversight responsibilities by withholding information or prohibiting witnesses from testifying.

Consider also retaliation against whistleblowers, governing by executive order instead of congressional enactment, trashing international agreements, encouraging violence, failing to protect the public from a health crisis for fear of hurting the stock market — and, at the end, throwing the country into turmoil by falsely challenging the legitimacy of presidential elections.

We used to think it cannot happen here. Well, it has been happening here, and the country must do something about it. We cannot afford simply to hope that another Trump will not reappear in the Oval Office. Human nature has not changed. Greed, the seduction of power, and lack of moral principle lurk in the shadows, ready always to pounce. Future Trumps may be more skilled than the original in stealing democracy.

Tackling the unfettered exercise of the pardon power should be among the first orders of business in the new Biden administration. The Constitution must not be allowed to become a death warrant when politicians behave as if it contained no constraints.

The pardon power has been used by President Trump to create a class of citizens who are above the law. It has been bad enough when Trump issued a pardon after a conviction or guilty plea. It has been even worse when he has telegraphed in advance that pardons for future illegal behavior are likely. That is nothing more than a license to ignore the law. And when a president pardons those who commit crimes in service of his interests, he licenses his own wrongdoing as well.

Richard Nixon one haughtily proclaimed that "when the president does it, that means that it is not illegal." Trump once said that he could shoot someone on Fifth Avenue, and no one would stop him. A president who wields the pardon to shield his own criminality would be out-Nixoning Nixon.

The fact that the Constitution appears to place few restrictions on the exercise of the pardon power should not be an insuperable obstacle to reform. Many matters on which the Constitution is silent are dealt with through legislation to fill in gaps or reconcile conflicting provisions.

Among the many examples are constraints imposed by legislation on the use of firearms despite the absence of constraining words in the Second Amendment. Another is the permission enshrined in law to sue for libel or provide government support for religious-run schools despite the absence of constraining words in the First Amendment.

It is hard to imagine any good argument for permitting pardons as personal or political favors or to cover up a president's wrongdoing. It is equally hard to imagine a good argument against constraining the pardon power to cases of recognized injustice or situations of compelling mercy.

Some say that there are difficulties under the Constitution in trying to restrict the president's pardon power or defining when pardons are appropriate. Some also say there are difficulties in tackling other presidential abuses of power.

But difficult issues are difficult because of their importance. A hope that the depredations of the Trump administration will disappear when Trump is out of the Oval Office is naïve. Abuses of presidential power have been accumulating for decades. Reform of the pardon power is an essential starting point despite the challenges because the corrupt forgiveness of criminality is the rot that will eventually destroy the Constitution itself and render other reforms irrelevant.

In Shakespeare's "Merchant of Venice," Portia instructs that "the quality of mercy is not strained" and that mercy blesses the giver as well as the receiver. A corrupt pardon dressed in robes of phony mercy blesses neither. It diminishes both giver and receiver and threatens the rule of law that is the bedrock of American democracy.

From Your Site Articles
  • There's an urgent opening to really make America great again - The ... ›
  • Democrats unveil plan to rein in the presidency once Trump's gone ›
  • Trump's challenges to democracy will be a problem for Biden - The ... ›
  • Trump is dissolving Congress in plain sight - The Fulcrum ›
  • Tangible fixes abound for restoring the rule of law - The Fulcrum ›
Related Articles Around the Web
  • Presidential pardons: Settled Law, unsettled issues, and a downside ... ›
  • Trump Has Discussed With Advisers Pardons for His 3 Eldest ... ›
  • Trump pardons: The controversial patterns ›
  • Pardons Granted by President Donald Trump ›
pardons

Want to write
for The Fulcrum?

If you have something to say about ways to protect or repair our American democracy, we want to hear from you.

Submit
Get some Leverage Sign up for The Fulcrum Newsletter
Confirm that you are not a bot.
×
Follow
Contributors

Why does a man wearing earrings drive Christians crazy?

Paul Swearengin

DeSantis' sitcom world

Lawrence Goldstone

Hypocrisy of pro-lifers being anti-LGBTQIA

Steve Corbin

A dangerous loss of trust

William Natbony

Shifting the narrative on homelessness in America

David L. Nevins

Reform in 2023: Leadership worth celebrating

Layla Zaidane
latest News

Ask Joe: Two sides of a story

Joe Weston
02 June

Podcast: Saving democracy from & with AI

Our Staff
01 June

Default? Financial crisis? Political theater?

David Butler
01 June

Three practical presidential pledges to promote national prosperity

James-Christian B. Blockwood
31 May

Meet the Faces of Democracy: Justin Roebuck

Mia Minkin
31 May

Podcast: Why Is Congressional Oversight Important, and How Can It Be Done Well? (with Elise Bean)

Kevin R. Kosar
Elise J. Bean
30 May
Videos

Video: Why music? Why now?

David L. Nevins

Video: Honoring Memorial Day

Our Staff

Video: #ListenFirst Friday YOUnify & CPL

Our Staff

Video: What is the toll of racial violence on Black lives?

Our Staff

Video: What's next for migrants seeking asylum after Title 42

Our Staff

Video: An inside look at the campaign to repeal Pennsylvania’s closed primaries

Our Staff
Podcasts

Podcast: Saving democracy from & with AI

Our Staff
01 June

Podcast: AI revolution: Disaster or great leap forward?

Our Staff
25 May

Podcast: Can we fix America's financial crises?

Our Staff
23 May

Podcast: Gen Z's fight for democracy

Our Staff
22 May
Recommended
Why does a man wearing earrings drive Christians crazy?

Why does a man wearing earrings drive Christians crazy?

Diversity Inclusion and Belonging
DeSantis' sitcom world

DeSantis' sitcom world

Opinion
Ask Joe: Two sides of a story

Ask Joe: Two sides of a story

Pop Culture
Video: Why music? Why now?

Video: Why music? Why now?

Big Picture
Podcast: Saving democracy from & with AI

Podcast: Saving democracy from & with AI

Technology
Default? Financial crisis? Political theater?

Default? Financial crisis? Political theater?

Budgeting