Corrupting the presidential pardon power

By Ron Faucheux
Real Clear Wire

The U.S. Constitution gives presidents the power to grant pardons and commutations for federal crimes. This unique, unchecked power was meant to be used sparingly, as a last resort to correct injustices in the system. Pardons shouldn’t be gifts for friends, donors, and relatives who happen to be lawbreakers. It’s intended to right wrongs, not cause new ones.

Not all presidents have misused the pardon power, but some have. How you see it often depends upon your politics. To paraphrase an old saw: One man’s shady pardon is another man’s pursuit of justice.

President Gerald Ford’s pardon of predecessor Richard Nixon was roundly criticized at the time, and may have cost Ford the 1976 election. Nixon had picked Ford to be vice president, which led to Ford’s accession to the presidency when Nixon resigned.

President Jimmy Carter granted amnesty to Vietnam War draft evaders – keeping a promise he made during his campaign. He wanted to move the nation beyond a grim moment in history, similar to what Ford did with Nixon’s pardon.

Shortly before he left office, President George H.W. Bush pardoned Reagan administration officials who had been involved in the Iran-Contra scandal, including former Secretary of Defense Caspar Weinberger. Bush’s connection to these officials, as vice president in the same administration, raised eyebrows. Was he just trying to protect colleagues, or worse, himself? But because the pardons came after the 1992 election, which Bush lost, it never became a campaign issue.

In 1999, President Bill Clinton commuted sentences for 16 members of FALN, a Puerto Rican paramilitary group that set off 120 bombing attacks in the United States. Clinton’s action was supported by archbishops in New York and Puerto Rico – but condemned by the FBI, the Federal Bureau of Prisons, the U.S. attorney’s office and a big majority of Congress. Some critics saw it as a political gambit to boost Hillary Clinton’s Senate candidacy in New York, a state with a large Puerto Rican population. 

On his last day as president, Clinton pardoned dozens of federal offenders, including billionaire fugitive Marc Rich, whose wife contributed big money to the Clinton Library and Hillary Clinton’s campaign, and Susan McDougal, who refused to testify about the president’s role in the Whitewater scandal. He also pardoned two convicted felons who paid $400,000 to Hillary Clinton’s brother, attorney Hugh Rodman, to represent them. His half-brother, Roger Clinton, and two former Democratic congressmen were also on the clemency list.

President Donald Trump’s use of the pardon power to keep allies out of prison has been unusually barefaced. His first pardon went to a prominent supporter, former Arizona sheriff Joe Arpaio. Later, he pardoned his former national security advisor, retired General Michael Flynn, and his own daughter’s father-in-law, Charles Kushner.

Trump additionally granted clemency to a slew of former political advisers and supporters, including Paul Manafort, Steve Bannon, and longtime counselor Roger Stone. Democrats in Congress questioned whether Stone’s pardon was a reward for protecting Trump; Sen. Mitt Romney called it an act of “unprecedented, historic corruption.”

In the 2024 campaign, Trump said that during a second term he’d likely pardon some of those involved in the Jan. 6 Capitol riot. 

The most recent clemency controversy was President Joe Biden’s “full and unconditional pardon” of his son Hunter Biden, which covered a 10-year period of possible federal offenses. He had previously said he wouldn’t do it. Biden also commuted sentences for 37 of 40 convicts on death row in federal prisons, which was largely a policy statement against capital punishment.

There isn’t much that can be done about dubious pardons – it’s a constitutional grant of power. But two things may help clean up the process. 

First, make pardons a bigger campaign issue. The news media should start asking presidential candidates about their clemency policies – and get them on record. Will they pardon friends and relatives? Political supporters? Witnesses in legal matters? It’s amazing how rarely these questions are asked.

Second, change the Constitution to prevent pardons and commutations during the last 100 days of each four-year presidential term. This means no clemency after mid-October of election years.

During Thanksgiving, presidents usually grant pardons to turkeys – for laughs, of course. But when the turkeys are well-connected criminals, it’s not so funny.
 
Ron Faucheux is a nonpartisan political analyst and pollster. He’s the author of “Running for Office” and publishes a national newsletter on public opinion, LunchtimePolitics.com.