I Beg Your Pardon...

I beg your pardon....(Source: here)

President Joe Biden recently pardoned his convicted son, Hunter Biden. Biden has also pardoned 8,026 other convicted criminals during his presidency, making him the most clement of all United States presidents. Between them, US presidents dating back to George Washington have pardoned a total of 38,514 convicted criminals. Almost every American president made use of the power to pardon; the only two not to do so - William Henry Harrison and James A. Garfield - died before they had the chance. In recent years, the numbers of pardons appear to have been rising as indicated in the chart below.

Pardons by US president since 1789 (Source: here)

The types of criminals pardoned by US presidents make interesting reading. They include polygamists, traitors, rebels, pirates, coup-mongers, confederate war criminals, murderers, spies, fraudsters, bootleggers, tax evaders, bribers, assassins, arms-smugglers, organised crime heads, paedophiles, racketeers, moonshiners, conspirators, terrorists, smugglers, killers of unarmed prisoners, monopolists, close friends of presidents, and, of course, family members of presidents (See here).

Undoubtedly, some pardons were justified, either because they corrected miscarriages of justice or because large shifts in public opinion required that harsh sentences be commuted or entirely lifted. For example, the vast majority of Biden’s pardons were granted to prisoners with marijuana convictions, which makes sense in a time when tolerance of the use of marijuana for personal consumption has skyrocketed. Similarly, many pardons were issued following the conclusion of the US Civil War to people, who had been convicted of the crime of helping slaves to escape to the North in search of freedom.

The US is not the only country to confer powers of pardon to its head of state. Other countries granting pardons include Australia, Chile, China, Egypt, France, Germany, Greece, Hong Kong, India, Iran, Ireland, Israel, Italy, Morocco, Poland, Portugal, Russia, Rwanda, South Africa, Spain, Sri Lanka, Switzerland, Turkey, and United Kingdom.

In many of these countries, the power to pardon can be traced back to feudal times, when kings had absolute power. In France, for example, ‘mercy’ powers came from the era of kings, that is, long before the French Revolution. In other countries, pardon powers arrived with colonialism. Thus, in the United States the president’s power to pardon can be traced back to reign of the English King Ine of Wessex, who ruled from 689 to 726.

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I have two major objections to presidential powers to pardon, one on structural grounds, the other for pragmatic reasons.

My objection on structural grounds is that when presidents can – with the stroke of a pen – invalidate court judgements, regardless of the seriousness of the crime, it muddles the distinction that must exist between the Executive and the Judiciary branches of government, thereby potentially making a mockery of the justice system.

In my opinion, pardons should be handled exclusively within the Judicial branch of the government to preserve the balance of powers upon which our freedom from oppression depends. If the Judiciary is not doing a good enough job in identifying and correcting wrongful convictions, and dispensing pardons accordingly, then the right policy is to reform the Judiciary to make sure it does. Judicial branch failures can never be a valid argument for giving heads of state powers that rightly belong in the judicial arena.

Second, pragmatically, when a head of state is placed above the law, as he is when given pardon powers then it leaves the door wide open for corruption, especially corruption by proxy. Corruption by proxy occurs when a president gets other people (proxies) to commit crimes on his behalf and then later pardons them.

President-elect Donald Trump arguably did exactly that with a number of his friends in his first term. Most notoriously, Roger Stone was jailed for obstructing the Muller Inquiry into Trump’s links to Russia and Russian election-interference and Trump went on to pardon him in 2020. History is replete with such examples, including Nixon’s pardon of uber-crook James Hoffa in 1971. Hoffa was the former president of the International Brotherhood of Teamsters. He had been convicted for pension fund fraud and jury tampering.

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As we look ahead to President-elect Donald Trump’s resumption of office in January 2025, the fundamental weaknesses in the US Constitution with respect to pardons and other presidential powers are likely to become a major area of focus. After all, Trump is the first convicted felon – from the Stormy Daniels case – to occupy the White House. How far will he push, bend, or even break the law?

As it happens, Trump will have considerable powers even without breaking any laws. Under Article 2, Section 2 of the United States Constitution, President Trump will be able to interfere with the decisions of the Judiciary in a number of ways (See here). He will be able to release individuals from punishment and restore their civil liberties. He will be able to do the same to entire classes of individuals, say, the convicted participants in his own coup attempt at the US Capital on 6 January 2021 (the power to collectively pardon many people is called ‘amnesty’). He will also be able to commute (reduce) sentences imposed by federal courts and grant reprieves (delays) to sentencing. The Department of Justice will offer him guidelines for how and when to apply pardons, but Trump is not under any obligation to follow the guidelines.

It should also be noted that since 1866 US presidents have been able to issue pardons at any time after an offence has taken place, including before charges have been filed or sentences imposed. In other words, before a crime has even been proven to have taken place. Gerald Ford made use of this provision when he pardoned Richard Nixon. Jimmy Carter did the same for Vietnam draft evaders.

However, the ability to grant pre-emptive pardons potentially opens a can of worms; only this week US Senator Bernie Sanders called on President Biden to grant large numbers of pre-emptive pardons to protect people from possible vindictive law suits by the Donald Trump Administration in the near future (See here).

Most concerning of all, the US Constitution does not explicitly state that a president cannot pardon himself. In other words, a ‘self-pardon’ by Trump cannot be ruled out. While a 1974 Justice Department memo states that “no one may be a judge in his own case”, this is unlikely to deter Trump, in my opinion.  

Should Trump choose to pardon himself for past and future crimes, the case would likely be challenged by someone and end up in the Supreme Court, where Trump already has a majority. His majority may increase significantly if he chooses to use his Senate majority to appoint a large number of new and friendly judges to the Court.

Meanwhile, Trump will be immune from prosecution while he is in office. US Department of Justice policy prohibits prosecutions against presidents in office on the grounds that bringing criminal charges would impede the president’s capacity to lead the country. This prohibition is, in my opinion, one of the most ridiculous things I have ever come across. Yet, in case you are wondering, it is precisely due to this rule that prosecutors have been dropping cases against the president-elect recently, despite solid evidence that Trump interfered in the result of the 2020 election, stole classified documents, etc.

Of course, even if the prosecutions were allowed to continue they would likely end in failure, because the President is ultimately senior to the Justice Secretary. The policy to prosecute Trump has no teeth, because as president Trump can simply appoint a friendly Justice Secretary and then order him to replace any belligerent prosecutor with a pliant one, who is willing to kick prosecutions into the long grass or even withdraw charges in their entirety.

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As I have alluded to in many recent blog posts, we are entering a challenging period for Western democracies, perhaps the most challenging period since the rise of Fascism in Europe in the 1930s (See here). Up to this point, wealthy Western democracies made decent strides in bringing prosperity to their citizens. They entrenched the rule of law, at least as far as most members of society are concerned, and they constructed powerful and relatively effective state institutions to deliver public services. They also made massive investments in infrastructure. Each of these pillars has been instrumental in bringing about the diverse, competitive, and dynamic private sector that produces the wealth upon which the high standard of living in your typical Western democracy is predicated.

Yet, the legacy of feudalism has not been fully purged from modern political systems. Immunity from prosecution and the powers to overrule judges, including the power to pardon, are but two examples among many that reveal that legacy.

Neversteless, the biggest, baddest, and most general of the problems that still dog Western democracies is ineffective accountability for elected officials. In my view, political accountability in Western democracies requires root and branch reform if we genuinely want to move our societies forward. We need to stop our politicians from lying with impunity (See here).

To achieve this, it is not enough just to remove the special privileges and extra-judicial powers we still readily grant to our elected officials. We must also change the entire balance of power between voters and our leaders. This is best done by transforming the act of voting from a non-binding expression of wish to an actual contractual relationship between voters and elected officials. What politicians promise they must be made to deliver. If they do deliver, they should be rewarded generously, like the highest paid CEOs, but if they fail, they should be fined or even go to jail. It only stands to reason politicians should have the right to choose their own election commitments, but once those commitments are made they must be delivered. Under such a system of sharper incentives, a new class of politician and an entirely new type of technocratic politics will emerge that should deliver far better outcomes for everyone in society, with the possible exception of today’s charlatan politicians.  

The End