Donald Trump is probably the world’s worst Monopoly player — all his steel hotels on Boardwalk are already mortgaged to the hilt even before he passes “Go,” right? — but it sure was a lucky roll of the dice when he scooped up the ultimate get-out-of-jail free card, which works for his pals, his kids, and maybe even himself.
The Founding Fathers who designed this board game on the streets of Philadelphia in 1787 left a giant flaw, a Constitutional ticking time bomb that wouldn’t go off for roughly 229 years. Now, with President Trump reportedly planning to blow up the board by issuing preemptive pardons to his three oldest children — Ivanka, Don Jr., and Eric — as well as son-in-law Jared Kushner, lawyer Rudy Giuliani, and anyone else who might be covered by the Friends and Family Plan, folks are belatedly wondering how to fix this.
“Donald Trump did not invent favoritism in clemency — but he seems to have perfected it,” Mark Osler, a former federal prosecutor who now teaches law at Minnesota’s University of St. Thomas and writes about clemency reform, told me by phone this week.
Indeed, it’s hard to say what is more damning on the Trump pardon beat right now — the already indefensible acts that kept his political allies like Michael Flynn, Roger Stone or Joe Arpaio out of prison, the talk of pardoning his kids and his cronies, the fear that he’ll test the Constitution’s break-point by pardoning himself, or a report that the Justice Department is probing an alleged bribery scheme involving a presidential pardon.
But underneath these cable-TV-ready headlines are some fundamental questions about American democracy and justice. What were the Founders thinking when, in crafting a supposedly airtight seal on the political system of checks and balances, they handed the president an absolute, monarchical power? How hard would it be to stop future presidents from using clemency as a vehicle of corruption? And in focusing on what’s become so bad about the pardon system, have we completely forgotten about the high moral principle it’s supposed to represent, a notion of just mercy?
The lame-duck drama over Trump pardons may be the ultimate example of the flaws in 1787, Philly-drafted U.S. Constitution that have been exposed by our norm-busting 45th president, who has shown that so much of the Founding Fathers’ blueprint for keeping a republic beyond the 18th century hinged on electing a decent and moral man as president.
It’s a fitting tribute to Trump’s raging narcissism, and his concept that the presidency exists to meet his own needs, and not the greater good of the nation, that he managed to turn his clemency power into a front-burner political scandal while also using his pardon pen less than any other modern president. Although CNN is reporting that Trump plans “a flurry” of pardons in his final days, through November the president had exercised clemency fewer times than any POTUS since the start of the 20th century, with just 28 pardons and 16 commutations of sentences.
What’s sparked so much outrage is that Trump has used most of his handful of pardons or commutations for cronies or political allies, other pals (like Illinois’ crooked former governor Rod Blagojevich, an ex-contestant on Trump’s reality show) or “unfairly treated” rich and powerful folks — or in a tiny handful of cases to help him politically. One of the few times the president arguably used his powers for good — to pardon Alice Marie Johnson, serving a ridiculously long drug-crime sentence — he turned it into a Super Bowl campaign ad.
Like so much that went wrong in the Trump years, a monumentally unfit president built on some alarming trends that already existed. Both Republican George H.W. Bush, who pardoned the key figures in the Iran-contra scandal that he himself was connected to, with the help of his Attorney General William Barr (sound familiar?) and Democrat Bill Clinton, with a dubious pardon for his wealthy campaign donor Marc Rich, started the slow erosion of faith in presidential clemency. So what were the Founders thinking, anyway?
Constitutional experts say the 1787 Framers were steeped in traditions of English law, and the idea that both the power and discretion to commit acts of mercy were of great moral import in an era when capital punishment was more common and the accused had fewer rights than in our modern, evolved system of law. The architects of American democracy did fret about the possibilities for abuse, but they also saw impeachment and removal from office as the remedy for presidential corruption — again, failing to anticipate either the rise of political parties or the moral rot that would be on full display in Trump’s sham impeachment trial this January.
“They largely believed that the character of the president and his responsiveness to public opinion would hold him in check,” Keith Whittington, a Princeton University law professor who’s written about pardon reform, told me. Whittington and other scholars are increasingly concerned about the ambiguity over whether Trump or any future POTUS could pardon himself, the increasing use of clemency to bail out political friends instead of as mercy for reformed strangers, and presidents such as Bush 41, Clinton or now Trump who shrugged off public outrage by waiting to pardon pals until they were lame ducks with one foot out the door.
Whittington also believes that it’s impossible for Congress to limit a president’s pardon power through simple legislation, as House Speaker Nancy Pelosi has suggested. “The pardon power appears to be sweeping in the Constitution.” he argued. Instead, he proposes a constitutional amendment — a tough remedy in such a divided era, but one that could get bipartisan support since Democrats will still be fuming about Trump while Republicans might want to check Biden or other future presidents of the opposing party.
A constitutional amendment would undoubtedly clean up the Founders’ error in not making it explicit that a president cannot pardon himself, and it could also ban acts of clemency by unaccountable lame-duck chief executives. It could attempt to also ban the most obviously self-interested pardons — family members such as the Trump children, certainly — or even attempt to grant review power to Congress or some other body. These are good ideas. All of them should be explored, and some should become a reality. As Trump has shown time and time again, we can’t rely on mere faith that a president will stay within the lines of unwritten democratic norms.
But something is lost when we only talk about the Trumpian corruption side of the pardon coin, and that is America’s drift away from our foundational notions of mercy. Just as was the case in 1787, our criminal justice system in 2020 is badly out of whack, with thousands of people trapped behind bars as victims of a trumped-up “war on drugs” and mass incarceration under the New Jim Crow that a majority of Americans now understand went too far.
The other massive Trump pardon scandal is the one that no one is talking about: The more than 10,000 Americans who applied to the Justice Department during the last four years pleading for mercy in an unduly punitive society — only to see that framework that had been imperfectly followed by recent past presidents completely ignored by the corrupt self-centeredness of Trump. These thousands of other Alice Marie Johnsons — who lacked a celebrity advocate like Kim Kardashian West — have gone unheard for four years.
“It’s outrageous,” Osler said of the way that Trump is leapfrogging unworthy friends like Giuliani ahead of the thousands of everyday Americans who’ve petitioned the government. “These people have followed the rules, filled out their petitions, have their letters of support, and have been waiting for years.”
Osler has also argued for significant pardon reform, but one that would address the huge backlog of cases and return the focus to clemency as a implement of moral good. He supports an idea that was also backed by some of the 2020 Democratic presidential hopefuls — but not addressed by Joe Biden — to take the clemency review process away from an increasingly politicized Justice Department and put it in the hands of a newly created bipartisan panel. The legal scholar is also disappointed that Biden was never once pressed during months of campaigning on how he plans to use his pardon powers or would address the backlog.
While Trump’s criminal presidency has surely dramatized the need for new restrictions that are written on a sheet of paper, whether it’s a lawbook or a constitutional amendment, words won’t bring the clemency reform that America needs most. The country with the world’s highest incarceration rate and a barbaric death penalty needs to remember that mercy is as much a part of justice as either vengeance or cronyism — in other words, a reform of the national heart. Hopefully, the 46th president will find it in his 78-year-old ticker to jump start that healing process.