Wednesday, February 19, 2020

Pardon Me Not

According to The New York Times, “President Trump, citing what he said was advice from friends and business associates, granted clemency on Tuesday to a who’s who of white-collar criminals from politics, sports and business who were convicted on charges involving fraud, corruption and lies — including the financier Michael R. Milken.” [1] You may remember Mr. Milken. He “was the billionaire ‘junk bond king’ and a well-known financier on Wall Street in the 1980s. In 1990, he pleaded guilty to securities fraud and conspiracy charges and was sentenced to 10 years in prison, though his sentence was later reduced to two years. He also agreed to pay $600 million in fines and penalties.” [2]

Also included in the executive beneficence was former Governor “Rod R. Blagojevich of Illinois” who “was sentenced to 14 years in prison in 2011 for trying to sell or trade to the highest bidder the Senate seat that Barack Obama vacated after he was elected president. Mr. Blagojevich’s expletive-filled remarks about his role in choosing a new senator — ‘I’m just not giving it up for nothing’ — were caught on government recordings of his phone calls and became punch lines on late-night television.” [3]

Now these, and all the others involved, despite the optics, might be well worthy of pardons, as pardons go. But there will be those who disagree. And at a time like this in the history of American politics, we don’t need a public perception that white-collar criminals are favorites of the President of the United States. Confidence in the criminal justice system is critical. But too often pardons emit the reek of corruption.

All of these people were duly convicted of federal crimes, and there is no indication that they were denied due process. Yet the President, with a few strokes of the pen, can legally make their actions as if they never happened.

Why does the Constitution allow for this? It is, simply, a power that the President inherited from the King of England. It was the constitution of that country which, albeit unwritten to this day, was used as a template of the U.S. Constitution by the Framers. The Senate is in place of the House of Lords; the House of Representatives is our House of Commons; and the President was in place of the monarch.

Now there was a reason for the king’s pardon power, and it was explained to us by Sir William Blackstone:

“IN criminal proceedings, or prosecutions for offenses, it would still be a higher absurdity, if the king personally sat in judgment; because in regard to these he appears in another capacity, that of prosecutor. All offenses are either against the king’s peace, or his crown and dignity; and are so laid in every indictment. For, though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offenses against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offenses against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offenses and breaches of the peace, being the person injured in the eye of the law. And this notion was carried for far in the old Gothic constitution, (wherein the king was bound by his coronation oath to conserve the peace that in case of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind of perjury, in having violated the king’s coronation oath; dicebatur fregisse juramentum regis juratum. [He was said to have broken the sworn oath of the king.] And hence also arises another branch of the prerogative, that of pardoning offenses; for it is reasonable that he only who is injured should have the power of forgiving.” [4]

The king had the power of pardoning crimes because he was legally considered to be the party injured. But does that reasoning make any sense when applied to the President? The plaintiff in federal criminal cases is the United States, not the President.

Alexander Hamilton rendered a defense of the pardon power granted to the President in Federalist No. 74:

“It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.

“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.” [5]

Hamilton only addressed the pardoning power to treasonous activity, but it is easy to see the weakness of his argument as applied to all cases. Any dispatch needed for this purpose can be handled by ordinary prosecutors, who offer conditional immunity all the time. The President can direct his Justice Department to do just that. It’s true that without the pardoning power the President can’t remove the offense after a conviction. But what do we need that for? There are court remedies for flawed prosecutions; and if there was nothing wrong with the prosecution, and the defendant was convicted, should the executive step in and remove the conviction because he feels like it?

The Constitution should be amended to remove the pardoning power of the President.