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.
