The Bishop and the Butterfly: Murder, Politics, and the End of the Jazz Age
    Michael Maiello's picture

    The Necessary Anachronism of The Presidential Pardon

    I think it goes without saying that the best way to stop president from pardoning racists like Joe Arpaio is to not elect presidents who support such racism.  None of the angry commentary matters to Trump.  He didn't do this to please lefty, centrist or even mainstream Republican critics.  I suspect Trump had a bunch of reasons, ranging from a cagy signaling to associates who might be asked to court Robert Mueller's contempt to the banal "because he could."

    My first reaction to the news was not even to get mad about Arpaio but to get mad at Obama for eight years of missed pardon opportunities.  The power to pardon people or to commute sentences is a whimsical power that we have given to the president.  You can talk all you want about established procedures and justice department recommendations but the essence of this power is that the president can act here for many reasons that would make a prosecutor apoplectic.

    I just read in the Times that George W. Bush wondered to Ari Fleischer why a president has such leeway in the first place. Fleischer referred to it as an anachronism.  It doesn't modern sensibilities.  In the interests of fairness, we like for issues of law, order and punishment to be systematic, with somewhat limited leeway for the government to treat criminal defendants differently.  Of course, we're far off from achieving that but things like sentencing guidelines, even as they have served to institutionalize racism, seem fair for their "goose and gander" qualities.

    I suppose we'd like to think that pardons are used broadly to correct failures of the justice system at the federal level. An obviously fine pardon who be for somebody established as wrongly convicted. Or maybe society has evolved to the point where the law that was broken is no longer relevant. Or maybe the crime was committed in the interests of the greater good and the motive matters. Perhaps we agree the crime was relevant and punishment deserved, but that the punishment was too harsh in retrospect.  I can see a lot of good that a smart president could do, using reason and mercy, to issue pardons and clemencies.  I believe that Democratic presidents have under-utilized this power.

    Which brings us back to the Department of Justice and its procedures.  We're a modern society. We like procedures and institutions that confer a sense of fairness to these types of decisions.  The problem is that the DOJ is an organization of prosecution and law enforcement.  It is not a hall of mercy.  The DOJ guidelines for recommending pardon or clemency are pretty harsh. They like to see serious prison time already served and they like to seem admissions of responsibility and remorse.  The DOJ acts as a kind of parole board here, made up entirely of prosecutors.

    Chelsea Manning only got a commutation from Obama, after seven years of harsh imprisonment for actions that certainly broke the letter of the law but range from treason to heroism in the public mind.

    The danger of leaving all of this up to the DOJ is that prosecutors naturally do not want to see their own work undone and they do not have a president's distanced perspective of what is really just and necessary in individual cases and what it just and necessary for the country.

    When I was a kid and moved to New Mexico in the 1980s, governor Anthony Anaya, on his way out of office, commuted the death sentences for every death row inmate in the state.  People howled, but it's one of the most principled decisions I've ever seen in politics and there was no way that prosecutors of the judiciary were ever going to accomplish, or even consider, that.  Anaya was way ahead of his time. I'd like to see presidents do more of that.

    This is all, admittedly, a bad time to be discussing this with His Fraudulency in office.  For the next four years, all of the pardons are going to be patronage, strategic or random and that will undermine the public's faith in granting this power to executives at the state and federal levels. But we need a human failsafe for our systems. The pardon power, thoughtfully applied, could be very good for society. Here's hoping Trump doesn't ruin it for the future.



    The pardons of the bellicose ignoramus have the sole objective of inciting raucous cheers from his cult of imbeciles and racists at Adoration Rallies.

    As always you have succinctly pegged Trump, NCD. For a minute or two after reading your comment, I got into fooling myself, thinking: but wait, this might be one instance where it's a core belief, haven't ever seen much evidence that he has been pro-immigrant and a lot of evidence that he admires authoritarian actors like Arpaio. BUT NOOOO, then I googled and found this:

    2012 FLASHBACK: Donald Trump Said GOP Was Too ‘Mean-Spirited’ Towards Illegal Immigrants

    Orwellian doublethink?

    To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy...

    Why did you put a question mark? It's amazing, actually, how his text is exemplified.

    Yeah, Trump only believes in the grift.  I figure, with this pardon, he saw a way to accomplish a lot of things at once:

    1) Gift to the alt-right after Bannon/Gorka departures.

    2) Thumb in the eye of the Republican establishment. (He needs to remind them often that he doesn't take orders, he gives them).

    3) Piss of liberals. (He enjoys it).

    4) Signal to anyone Mueller might subpeona that Trump is a pardony kind of guy.

    5) Hurt Jeff Flake, piss of John McCain. (Scores, scores, scores.)

    6) Make Blogging Great Again.

    Excellent list, suggest this addition: in your face to all those federal judges stopping my immigration orders.

    BTW just ran across a confirmation of your #2, was looking at Breitbart, ran across that Rove came out strongly on the McCain side on Fox News today.

    You're so right about federal judges.  Add District Court judges and I almost bet that the first person Trump told about his pardon was Gonzalo Curiel.

    Michael, I agree with the gist of most of what you say, but I feel like you are only half-way to the right conclusion. You end on this point: 

    we need a human failsafe for our systems. The pardon power, thoughtfully applied, could be very good for society. Here's hoping Trump doesn't ruin it for the future.

    Sure, a supra-legal authority empowered to right the wrongs of an institutionally warped legal system would help, given just the right person is put in that position. Your formulation implies that "our systems" are not made of humans (or intimate that they are, on the contrary, all too human in their professional biases), and somehow you manage to summon hopefulness about finally getting a *real* human in that unique position endowed with sufficient leverage to bend the universe a tad towards justice. Fine. 

    But let's just take a few steps back. In these days of Trump, a variant of your Bonnie Tyler-ish superhero appeal can round off pretty much any plaintive policy piece in any domain. But that seems like a dangerously blinkered and short-term palliative notion. The argument is that we need a super-presidency because X political/ economic / judicial institutions aren't working. But we've also got Trump now occupying that super-presidency precisely because those institutions aren't working. The idea that the solution is just to elect a better super-president in these circumstances is kissing-cousins with "assume a can-opener" thinking. 

    I get that you are making a narrow point regarding the power to pardon, but there is something misguided about the reflexive thinking (which I am perhaps unfairly associating you with) that seeks a solution to current systemic issues in the handing over of greater and greater powers to one person chosen through a deeply flawed process. 

    So, I did a little (very little) reading about why the Founders included the pardon as part of "the system."

    Hamilton, lover of super hero executives, had two primary purposes:

    1) Keep justice from becoming bloodthirsty (basically, my reason).

    2) Give the president a means of forgiving rebels in the event of internal wars (logical, given how the founders got to be founders).

    Times have changed. The second reason was likely more important then than now. The threat of mass insurrection seems low and the public desire to pardon violent militias in the name of "moving on" also seems low. But I do think the system has become cruel. Obama commuted sentences for more than 300 non-violent drug offenders, for example.  Seems a good example of point 1, just one that didn't go far enough for my tastes.

    But, if there's a Trump for every Obama, you might be right that I am that I am waving my hands at too many complexities.


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