This happens at the end of every presidency. Donald Trump is certainly not the first to do it and he won’t be the last. Although, if Joe Biden decided to make Trump the last president to do it – by setting a new custom of not continuing it – that would be great. Maybe this is something we can hope for from our new president.
Late last night the White House announced that President Trump had issued 73 pardons and 70 commutations. Among the high-profile recipients are Lil’ Wayne and former Detroit Mayor Kwame Kilpatrick, along with former Trump advisor Steve Bannon and longtime Trump fundraiser Elliott Broidy.
It is not my purpose to dispute the merits of any particular pardon or commutation, nor do I have a problem with presidents having or using this power. Some situations call for mercy, and I like the fact that there is one person – accountable to the public – who can decide that such mercy is appropriate in a given situation.
Advertisement - story continues below
But therein lies the problem with the way this power is too-often used. Presidents notoriously wait until the final hours of their presidencies to unleash a flurry of pardons and commutations. This is not to say they never issue them at other times, but you can always count on a large number of them coming out right before the president leaves office.
That tends to take away the matter of accountability, which makes the pardon/commutation power far too susceptible to abuse. If Bill Clinton had pardoned Marc Rich in 1998 instead of in January 2001, there would have been a huge uproar and he would have had to explain himself. But because he was about to leave office anyway, no one cared. If Trump had pardoned Kilpatrick in 2018 instead of last night, there would have been considerable debate about the wisdom of the decision. Now there’s nothing anyone can do.
This is not how pardons should be issued. The last-minute nature of pardons stems from the expectation that the decisions will be controversial, so presidents wait until the controversies won’t hurt them. That makes it much easier for people who really don’t deserve the mercy to receive it, often because of a business, personal or political connection to the president that should not be the basis for such mercy.
When President Trump pardoned I. Lewis “Scooter” Libby, the one-time aide to former Vice President Dick Cheney, it was one of the finest acts of Trump’s presidency. Libby had been the target of a vindictive special prosecutor, Patrick Fitzgerald, who was looking to justify an investigation that never should have been started in the first place. Libby had clearly done nothing wrong but got caught up in a process technicality. When Trump pardoned him in April 2018, he gave the populace the opportunity to factor the decision into Trump’s larger political record. That’s the right way to do it.
Advertisement - story continues below
When presidents unleash a flurry of pardons on the literal night before they leave office, there is no accountability and no recourse. That should not be.
The Constitution would have to be amended to stop this from happening, but presidents could simply make the decision to stop it on their own. It would serve the country well if presidents would restrain themselves, and issue all pardons and commutations before they will have to defend their decisions to the voters. Pardons that are really justified could still happen, but gratuitous ones that are just done as a favor to friends and allies would be much harder for presidents to pull off.
That’s as it should be. Let’s save the pardon power for those who really deserve it, and let’s have the opportunity to hold presidents accountable for the way they use this power. Because as it stands right now, we don’t have that opportunity at all.