Let’s face it: President Donald Trump has hit a rough patch. He continues to challenge his reelection loss despite no real evidence of voter fraud or other widespread ballot mischief. COVID-19, which likely helped cost him the race, continues to run rampant throughout the country and has infected close allies such as chief of staff Mark Meadows and HUD Secretary Ben Carson. Surely Thanksgiving and its silly turkey pardoning ceremony will be a welcome distraction this year, right?
Well, probably not. Every year the turkey pardoning ceremony reminds the country that the president can pardon turkeys, but his record of mercy toward people inevitably comes up, too. Unfortunately for Trump – who is now both impeached and a lame duck – this Thanksgiving will likely renew media speculation about whether he might pardon himself and others now that the voters and the Democratic Congress have little influence left over him.
In nearly four years, Trump has granted 28 pardons and commuted 16 sentences. Clemency grants have gone to prominent Republicans, such as ex-sheriff Joe Arpaio and conservative author and commentator Dinesh D’Souza. Presidential mercy has been doled out to both celebrities and those with Hollywood connections: Trump posed for a picture with social media star Kim Kardashian, a well-known advocate for Alice Marie Johnson (who received both a sentence commutation and, eventually, a pardon). He has awarded clemency to those who appeal to him via Fox News or common acquaintances.
Several of Trump’s closest past associates are in serious legal jeopardy. Former advisor Steve Bannon is charged with federal crimes for his activities related to financing a border wall. Former campaign chair Paul Manafort was sentenced to 7 years in federal prison before being granted home release. Longtime Trump friend Roger Stone was convicted of lying to Congress, and Trump has already commuted (but not pardoned) his three-year prison term. These men are among the most likely candidates for clemency before Trump leaves office.
The president himself may be a candidate for clemency, too. Although currently protected from prosecution for federal offenses, his immunity ends on January 20, 2021 at noon. Might the president try to pardon himself? This question has no answer unless and until a self-pardon is tried. A self-pardon attempt would not impact potential state-level charges. It could, however, allow Trump to avoid federal prosecution and simultaneously establish a new category of clemency abuse.
Maybe President Trump should stick to pardoning turkeys.
Alexander Hamilton argued in Federalist #74 that “the benign prerogative of pardoning” should be used to address cases of “unfortunate guilt” and to “restore the tranquillity of the commonwealth” during “seasons of insurrection or rebellion.” In other words, clemency would be an act of mercy or a means to pursue the public welfare. Other recent lame duck presidents who have veered from these principles made a mockery of an important constitutional power and damaged their presidential legacies. While protected from meaningful political consequences – much like Trump is now – they simply could not resist the temptation to grant full pardons or sentence commutations (reductions) to their political allies, friends and family. This compulsion has taken over presidents of both political parties.
After losing his reelection bid to Democrat Bill Clinton, George H.W. Bush granted pardons on Christmas Eve 1992 to six Iran-Contra figures including Caspar Weinberger, who served as defense secretary under President Ronald Reagan. Bush pardoned Weinberger in especially suspicious circumstances, as the pardon allowed Bush to avoid having to testify in Weinberger’s upcoming trial.
Before exiting the Oval Office on his last day, Bill Clinton granted a generous 140 pardons and 36 commutations. Among those who benefitted from the president’s mercy were fugitive Marc Rich, whose ex-wife had donated generously to Clinton and Democrats, Clinton’s ex-business partner Susan McDougal, and Clinton’s half-brother Roger, among many others.
George W. Bush commuted the prison sentence of I. Lewis “Scooter” Libby on July 2, 2007. Libby had been ensnared in the Valerie Plame secret identity controversy and was ultimately charged and convicted of four federal offenses. Bush, set to leave office on January 20, 2009 and therefore insulated from public disapproval, commuted Libby’s sentence from 30 months in prison to zero time served.
The exception to the recent rule? Barack Obama, who generally resisted using clemency to assist high-profile offenders. Obama even used his final months in office to undertake a Clemency Initiative to free individuals who were unfairly over-sentenced for nonviolent drug crimes.
Will Trump take the easy road and duplicate the mistakes of his predecessors? Or will he offer clemency consistent with Hamilton’s stance, as did Obama?
Jeffrey Crouch is an assistant professor at American University. He is Editor of Congress & the Presidency journal, author of The Presidential Pardon Power, and co-author (with Mark J. Rozell and Mitchel A. Sollenberger) of The Unitary Executive Theory: A Danger to Constitutional Government.
The views expressed in this article are the author’s own.
