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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.

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.

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Defending Democracy in the Heart of Democracy - Washington, D.C.

The Crisis in Our Capital

Washington, D.C. is at the center of American democracy. Yet today, its residents — taxpayers, veterans, workers, families, people like you an I, American citizens — are being stripped of their right to self-government. The recent surge of out-of-state National Guard troops into the District under federal order has highlighted a deep flaw in our system: D.C. does not have the same authority to govern itself that the 50 states enjoy.Keith

We are told this militarization is about “public safety,” but violent crime in D.C. is near a 30-year low . What we are witnessing is not a crime-fighting measure, but an unprecedented encroachment on local authority. The consent of the people — the foundation of democracy — is being sidelined to pursue a political or even personal agenda.

The Ethical and Constitutional Problem

Legally, a president can request National Guard support through interstate compacts. But legality is not the same as legitimacy. True democracy requires consent, not unilateral fiat. Under the Home Rule Act, federal control over D.C. is only supposed to last 30 days in emergencies. Yet the use of state-based National Guard units circumvents this safeguard and seems to demonstrate a hidden agenda. This is a loophole — one that undermines D.C.’s right to self-governance and sets a dangerous precedent for federal overreach.

An Urgent Legislative Answer

It is not enough to critique the abuse of power — we must fix it. That is why I have drafted the D.C. Defense of Self-Government Act, which closes this loophole and restores constitutional balance. The draft bill is now available for public review on my congressional campaign website:

Read the D.C. Defense of Self-Government Act here

This legislation would require explicit, expedited approval from Congress before federal or state National Guard troops can be deployed into the District. It ensures no president — Republican. Democrat or Independent — can bypass the will of the people of Washington, D.C.

This moment also reminds us of a deeper injustice that has lingered for generations: the people of Washington, D.C., remain without full representation in Congress. Over 700,000 Americans—more than the populations of several states—are denied a voting voice in the very body that holds sway over their lives. This lack of representation makes it easier for their self-government to be undermined, as we see today. That must change. We will need to revisit serious legislation to finally fix this injustice and secure for D.C. residents the same democratic rights every other American enjoys.

The Bigger Picture

This fight is not about partisan politics. It is about whether America will live up to its founding ideals of self-rule and accountability. Every voter, regardless of party, should ask: if the capital of our democracy can be militarized without the consent of the people, what stops it from happening in other cities across America?

A Call to Action

When I ran for president, my wife told me I was going to make history. I told her making history didn’t matter to me — what mattered to me then and what matters to me now is making a difference. I'm not in office yet so I have no legal authority to act. But, I am still a citizen of the United States, a veteran of the United States Air Force, someone who has taken the oath of office, many times since 1973. That oath has no expiration date. Today, that difference is about ensuring the residents of D.C. — and every American city — are protected from unchecked federal overreach.

I urge every reader to share this bill with your representatives. Demand that Congress act now. We can’t wait until the mid-terms. Demand that they defend democracy where it matters most — in the heart of our capital — because FBI and DEA agents patrolling the streets of our nation's capital does not demonstrate democracy. Quite the contrary, it clearly demonstrates autocracy.

Davenport is a candidate for U.S. Congress, NC-06.