Skip to content
Search

Latest Stories

Top Stories

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

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.

Read More

U.S. President Donald Trump holds up a signed executive order as (L-R) U.S. Treasury Secretary Scott Bessent, Secretary of Commerce Howard Lutnick and Interior Secretary Doug Burgum look on in the Oval Office of the White House on April 09, 2025 in Washington, DC.

U.S. President Donald Trump holds up a signed executive order as (L-R) U.S. Treasury Secretary Scott Bessent, Secretary of Commerce Howard Lutnick and Interior Secretary Doug Burgum look on in the Oval Office of the White House on April 09, 2025 in Washington, DC.

Getty Images, Anna Moneymaker

President Trump Invokes Emergency Powers for New Tariffs

In his April 2 executive order on tariffs and previous orders announcing tariffs on Chinese, Canadian, and Mexican imports, President Trump used the National Emergencies Act of 1976 (NEA) and the International Emergency Economic Powers Act (IEEPA) of 1977.

This raises two important questions: Do the National Emergencies Act and IEEPA allow the President to set tariffs, and is the current economic state actually an emergency? (We also covered some tariff history on our full post here, and here on the projected impact, Trump's rationale, and Congress's response.)

Keep ReadingShow less
Innovative Local Solutions Can Ease America’s Housing Crisis
aerial photography of rural
Photo by Breno Assis on Unsplash

Innovative Local Solutions Can Ease America’s Housing Crisis

Across the country, families are prevented from accessing safe, stable, affordable housing—not by accident, but by design. Decades of exclusionary zoning, racial discrimination, and disinvestment have created a housing system that works well for the wealthy but leaves others behind. Even as federal cuts to public housing programs continue nationwide, powerful, community-rooted efforts are pushing back and offering real, equity-driven solutions led by local voices.

Historically, states like New Jersey show what’s possible when legal advocacy and grassroots organizing come together. In 1975, the New Jersey Supreme Court’s Mount Laurel ruling established that every municipality in the state has a constitutional obligation to provide its fair share of affordable housing. This landmark legal ruling reshaped housing policy and set a national precedent. Today, organizations like Fair Share Housing Center continue to defend and expand this right, ensuring that local governments are prohibited from using zoning laws to exclude working-class families or people of color.

Keep ReadingShow less
Trump Welcomes Salvadoran President, Continuing To Collaborate With Far-Right World Leaders

WASHINGTON, DC - APRIL 14: U.S. President Donald Trump meets with President Nayib Bukele of El Salvador in the Oval Office of the White House April 14, 2025 in Washington, DC.

(Photo by Win McNamee/Getty Images)

Trump Welcomes Salvadoran President, Continuing To Collaborate With Far-Right World Leaders

WASHINGTON D.C. - President Donald Trump on Monday said that he would try to deport “as many as possible” immigrants or criminals to El Salvador. Salvadoran President Nayib Bukele met with Trump at the White House to discuss the ongoing deportations of MS-13 and Tren de Aragua gang members to El Salvador’s notorious Center for Terrorism Confinement (CETOC).

Trump has now deported 238 individuals to El Salvador under the 1879 Alien Enemies Act without notice or due process of law. President Bukele has agreed to help Trump with his deportation goals and received $6 million from the White House to continue these efforts.

Keep ReadingShow less
Quiet Death of Dissent
woman in black hijab holding white and black printed board
Photo by Justin Essah on Unsplash

Quiet Death of Dissent

There is something particularly American about the way we're dismantling our democracy these days – we are doing it with paperwork. While the world watches our grand political theater, immigration agents are quietly canceling visas, filling out deportation orders, and reshaping the boundaries of acceptable speech without firing a single shot.

I think about Mahmoud Khalil, a Palestinian activist and Columbia graduate who committed no crime beyond speaking his mind. I think about Rumeysa Ozturk, a doctoral student at Tufts whose academic career hangs by a thread. I think about the estimated 300 international students whose visas are under review or already revoked for daring to participate in First Amendment exercises on campus across the United States. These stories are not just about immigration status but about who is American enough to participate in its democracy and under what conditions.

Keep ReadingShow less