The Pardon Power

Why do presidents have pardoning power in the first place?

It starts, in part, with Alexander Hamilton, who articulated the rationale for presidential pardons in the Federalist Papers when he wrote in No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” So, as with so many things in the American civic structure, the idea is that the pardon provides checks and balances against the judiciary system; there has to be an out somewhere in the system.

In the Constitution, the president’s power to pardon for federal crimes is outlined in Article II, Section 2, which gives the Commander-in-Chief power to “grant Reprieves and Pardons for Offenses against the United States” (though not in “cases of impeachment”). But, though other historical documents like the Federalist Papers can offer clues into the Founding Fathers’ mindsets, suggesting they were concerned with mercy and justice, nothing is specified in the Constitution itself about why and when that power should be used.

So, since then presidents have used the power for number of reasons that go beyond addressing miscarriages of justice. Those reasons — in which there’s no argument that the person is innocent, but rather some other factor in play — range from maintaining public order to appealing to minority voters to simply pardoning old friends or political allies.

From The Guardian 24 Dec 2020

'Under the US constitution, the president has broad, unilateral pardon powers, but pardons are traditionally reviewed by the justice department. Many of Trump’s pardons, however, seem to clash with department standards – and are instead bestowed as a means to reward allies or act on grudges. Only five of 65 pardons and commutations Trump issued before Wednesday were recommended by the justice department pardon attorney, according to a tally by the Harvard law professor Jack Goldsmith.

Manafort, 71, was sentenced for convictions including unregistered lobbying, tax fraud, bank fraud and money laundering. Stone, 68, was convicted of lying to Congress and obstructing a congressional investigation into whether the Trump campaign colluded with Russia to win the 2016 election. “Mr President, my family & I humbly thank you for the Presidential Pardon you bestowed on me. Words cannot fully convey how grateful we are,” Manafort tweeted on Wednesday night.

A presidential pardon does not shield someone from state charges, and the Manhattan district attorney, Cyrus Vance Jr, is still looking to prosecute Manafort for state crimes. Trump’s pardon “underscores the urgent need to hold Mr Manafort accountable for his crimes against the People of New York as alleged in our indictment, and we will continue to pursue our appellate remedies”, Danny Frost, a spokesman for Vance, told CNBC. A judge had previously blocked Vance from advancing his case, to protect Manafort from being prosecuted twice for the same crimes.

A Trump lawyer reportedly offered pardons to Manafort and Flynn as they were approached by federal investigators – raising suspicions that the pardons were proffered in exchange for loyalty to Trump. The New York Times first reported the news in 2018. In his report following the investigation, Mueller wrote: “Many of the president’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view.”

Adam Schiff, the Democratic representative of California who prosecuted the impeachment trial of Trump, said: “During the Mueller investigation, Trump’s lawyer floated a pardon to Manafort. Manafort withdrew his cooperation with prosecutors, lied, was convicted, and then Trump praised him for not ‘ratting’. Trump’s pardon now completes the corrupt scheme.”

“Lawless until the bitter end,” Schiff tweeted.

The congressman also noted that many serving time in federal prisons had been convicted of non-violent crimes and deserved a reprieve. “But who does Trump pardon? Those who lie, cheat or steal for him and his family,” Schiff said.

Charles Kushner, 66, pleaded guilty to tax evasion and lying to the Federal Election Commission. He also pleaded guilty to witness tampering, after he retaliated against his brother-in-law William Schulder, who was cooperating with federal investigators. Kushner was accused of hiring a sex worker to seduce Schulder, videotaping the encounter and sending the tape to Schulder’s wife – Kushner’s sister.

Another twist: Kushner was prosecuted by Chris Christie, a former US attorney and New Jersey governor who has been a Trump loyalist.

The executive director of the watchdog group Citizens for Responsibility and Ethics, said: “In pardoning Paul Manafort, Roger Stone and Charles Kushner, President Trump has made it clear that he believes the purpose of the pardon is to bail out rich white men connected to him. Trump has turned an instrument of mercy and justice into just another way for him to be corrupt.”