• 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
Follow
Contributors

Reform in 2023: Leadership worth celebrating

Layla Zaidane

Two technology balancing acts

Dave Anderson

Reform in 2023: It’s time for the civil rights community to embrace independent voters

Jeremy Gruber

Congress’ fix to presidential votes lights the way for broader election reform

Kevin Johnson

Democrats and Republicans want the status quo, but we need to move Forward

Christine Todd Whitman

Reform in 2023: Building a beacon of hope in Boston

Henry Santana
Jerren Chang
latest News

Family values and societal results

Debilyn Molineaux
9h

Transpartisanship and transformation

Brenda Marinace
9h

Podcast: Why we misunderstand independent voters

Our Staff
9h

The American experiment

Kevin Frazier
24 January

The Fahey Q&A with Jasmine Hull of Deliberations.US

Katie Fahey
Courtney Fiedler
24 January

Podcast: What does the House Speaker election say about the Republican Party?

Our Staff
24 January
Videos

Video: Meet the citizen activists championing primary reform

Our Staff

Video: Veterans for Political Innovation - Who we are

Our Staff

Video: Want to fight polarization? Take a vacation!

Our Staff

Video: Kevin McCarthy is Speaker, but he's got a tough job ahead

Our Staff

Video: #ListenFirst Friday End of Year

Our Staff

Video: Minnesota Gov. Walz asks fellow Democrats to ‘Think Big’ when it comes to fixing voting issues

Our Staff
Podcasts

Podcast: Why we misunderstand independent voters

Our Staff
9h

Podcast: What does the House Speaker election say about the Republican Party?

Our Staff
24 January

Video: Chaos or calm: Building confidence in Pennsylvania elections

Our Staff
19 January

Podcast: Pushing back against polarization

Our Staff
18 January
Recommended
Family values and societal results

Family values and societal results

Big Picture
Transpartisanship and transformation

Transpartisanship and transformation

Big Picture
Podcast: Why we misunderstand independent voters

Podcast: Why we misunderstand independent voters

Podcasts
image of Statue of Liberty and American flag.

The American experiment

Civic Ed
Jasmine Hull is Chief Operating Officer for Deliberations.US.

The Fahey Q&A with Jasmine Hull of Deliberations.US

Civic Ed
Podcast: What does the House Speaker election say about the Republican Party?

Podcast: What does the House Speaker election say about the Republican Party?

Podcasts