Donald Trump’s wave of pardons of his cronies, accomplices, and, soon, relatives, reeks of putrefaction. It is the stench not merely of a lame-duck administration—after all, presidents have abused the pardon power before—but of a long-dead duck, swarming with maggots, viscera staining the Oval Office carpet, parasites devouring the corpse.
In other words, Trump has found his perfect match.
From his first pardon, of the vicious, racist, fascistic criminal Joe Arpaio, through those he doled out Wednesday to the likes of Paul Manafort, Roger Stone and Charles Kushner, to his last, which will presumably be a preemptive one of Donald J. Trump himself, he’s shown an utter disregard of the original constitutional purpose of the pardon power (so much for “originalism”), and a perverse delight in exercising one of the presidency’s rare unlimited powers, all while owning the libs.
Originally, the power of the pardon resided with the kings and queens of Europe, who were seen as the sovereign and the ultimate source of the nation’s laws. Much as Trump has depicted himself over these long four years, the monarch isn’t accountable to the rule of law, because the monarch is the basis of the law itself.
Finally, Trump has found a presidential power that suits his authoritarian predilections: unfettered, unaccountable, descended from kings.
But the pardon also had a jurisprudential purpose, which is why the Framers maintained it when they created our constitution. As Portia rather cynically observed to Shylock in The Merchant of Venice, law without mercy is incomplete. Or in Alexander Hamilton’s words, “Without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” While pardons were, in part, exercises of quasi-monarchical power, they also served to correct the inevitable injustices created by a system of crime and punishment.
That’s why presidents have, historically, commuted criminal sentences that followed the letter of the law but did not take extenuating circumstances into account. It’s why, as the New York Times editorial page has argued, President-elect Biden would do well to undo some of the mass incarceration that he helped create in the 1990s. It’s why Kim Kardashian West, of all people, has emerged as a leading advocate for the wrongly convicted or unjustly sentenced.
But that’s not how Trump’s pardons have worked. He’s issued the fewest pardons of any president in the last century. And according to Harvard Law Professor Jack Goldsmith, over 90 percent of them went to people with personal or political ties to Trump himself. President Obama pardoned over 1,900 people, mostly low-level drug criminals caught in an overly rigid justice system. President Trump has pardoned or commuted 97, mostly his buddies.
In other words, Trump’s managed to out-authoritarian one of the most authoritarian constitutional powers in America. He’s managed to sully even that. Amazing, really.
Oh, but it gets better. Generally, pardons are reviewed by the Department of Justice, which weighs various factors like fairness, equity, deterrence, and so forth. But according to Professor Goldsmith’s data, most of Trump’s pardons weren’t even recommended by DOJ. It’s just Trump.
So, like so much else—the balance of power between branches, the responsibility of the executive to provide reasons for its actions, even the rule of law—Trump has managed to degrade the pardon power into a naked vehicle for patronage and power. He’s just a mob boss, at this point, in an oversized suit.
Now, just by way of comparison, it is worth remembering that other presidents have issued dubious pardons before. President Ford’s blanket pardon of Richard Nixon, for one. President George H.W. Bush’s self-serving pardon of Caspar Weinberger and others who might have exposed his involvement in Iran-Contra. President Clinton’s pardon of his brother Roger, the financier Marc Rich, and many others on his very last day in office.
But nothing compares to Trump. Political allies convicted for lying about or participating in Russia’s interference in the 2016 election: Paul Manafort, Michael Flynn, Roger Stone, George Papadopoulos, and Alex van der Zwaan. Right-wing Republicans convicted of corruption: Duncan Hunter, Chris Collins, and Steve Stockman. Relatives of Trump’s inner circle: Charles Kushner and four Blackwater contractors who murdered Iraqi civilians (Blackwater was headed by Erik Prince, brother of Education Secretary Betsy DeVos.) Right-wing ideologues: Joe Arpaio (who defied a court order to stop imprisoning people solely on the suspicion that they might be “illegals”, i.e. they were Latino), Dinesh D’Souza (campaign fraud), Bernard Kerik (top cop turned perjurer and tax fraud), associates of the Bundy family. Personal friends: Michael Milken, Conrad Black, and several mid-level campaign donors. Seven convicted war criminals.
And of course, it appears inevitable that Trump will pre-emptively issue general, blanket pardons for his entire family, as is allowed under an 1866 case over the pardon of a former Confederate senator, and, eventually, himself.
There’s not much that can be done about any of this. Naturally, the right-wing media, from Fox News to the Daily Stormer, is already spinning these self-serving pardons as justifiable protection from some supposed left-wing lynch mob, so it’s unlikely that the outrage over the pardons will sway anyone’s opinion.
But let me leave you with a few small breadcrumbs of hope.
First, it’s unsettled whether a president can pardon himself, and while legal scholars are divided, there are strong reasons to think that a conservative, originalist Supreme Court would rule that he cannot. Article II, Section 2 of the Constitution says the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” According to an analysis by law professor Frank Bowman III, there is no precedent in legal history for someone pardoning himself. The very notion is antithetical to the Framers’ desire to not have an American king. It is the foundation of tyranny. These are judicially conservative reasons not to allow Trump’s unprecedented self-pardon.
Second, pardons only cover federal law. In a sense, this whole scam may be a great gift to New York attorney general Letitia James, who has been doggedly pursuing the Trump family’s many misdeeds under New York state law.
And most enticingly of all, one of the “catches” of a presidential pardon is that it removes the protection of the Fifth Amendment, since there is no longer a risk of self-incrimination. So if a federal or state grand jury subpoenas one of Trump’s many pardonees, they have to talk, under oath, or risk prosecution for contempt or obstruction.
In other words, there’s a slight chance—very slight, but let a pundit dream—that Trump may find himself on the wrong side of a criminal investigation, and the very cronies he shamelessly set free will be forced to either turn against him or go back to jail. That would be some sweet justice indeed.
Until then, however, there’s nothing to do but put up with the stink.