Pardon me, Mr. President
Living through just one Trump term was like living through a four-year nightmare (imagine what two would have been like). Many of us were scared and wanted saving, but no one really stood up to the monster in order to rescue us. This was the real damage done to our nation over the past four years, and it is time to wake up from this nightmare to the reality that our government is not equipped with sufficient “checks and balances” to truly protect us from a tyrant.
After witnessing and/or surviving the final horror shows that unfolded between the election in November and the inauguration in January, we all heaved a huge sigh of relief (all but those who are still hell-bent on using the match of liberty to burn democracy, equality and justice to the ground) and started getting in line for a vaccine, for relief. Our newly elected president promises us “unity” and a return to normal, and, though we may not all prefer that particular normal, we are at least reassured that he is not blatantly lying or stupidly conspiring to destroy our still-developing democracy.
It’s a blessing to have a leader with integrity, but we can’t let the office of the President depend on the personality of the president. If democracy is based on one thing above all, it is that no one is above the law, because everyone is human and therefore corruptible. The conviction that power corrupts should be at the core of our system of government — we should plan for the worst even as we hope for the best. Trump did many things to damage our democracy, but in nearly every case it was actually a flawed system that he took advantage of, or that made it possible, or that let him get away with it. We often found ourselves standing by, as if with hands tied, aghast at what depravities our president was capable of. Some of them involved skirting or twisting the laws of the land, even the Constitution, but some of them simply took advantage of the very things we put in place to protect people from power — in a sickeningly strange subversion of the will of those very people. Paramount among these, I would argue, is the use of the presidential pardon, a nearly entirely unchecked executive branch power, most often implemented to achieve personal and political ends. This problem is far greater than Trump himself, or his abominable administration; his extreme abuse of this power (not his exclusive use, as others have used it in this way at least as extensively as he did) simply sheds light on how outdated and potentially damaging it is. How absurd, to put it bluntly.
The presidential pardon makes a mockery of justice.
And yet it is something that our judicial system has embraced with what can only be described as enthusiasm. To hear some of our venerable justices and constitutional authorities speak of it, we have to wonder whether they were privy to the idea that our goal is to create and sustain a democratic nation.
The pardon power has been considered in a number of Supreme Court cases. In Ex parte Garland, for example, the Court ruled,
“The power thus conferred is unlimited . . . [.] It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”
Well, that effectively blocks the legislative branch, the one charged with representing the will and protecting the well-being of the American People, from mitigating any abuse of the pardon power. But perhaps even more surprisingly, one of our most revered justices pretty much put the kibosh on any judicial control or limitation of the president’s application of this power. In Marbury v. Madison, Chief Justice John Marshall wrote regarding the presidential powers:
“[T]he President is invested with certain important political powers . . . [for] which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience . . . [.] [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion . . . [.] [T]he decision of the executive is conclusive.”
We can only imagine — or, at least, those of us who don’t study the sordid history of the back room finagling of the good old (white, anglo-saxon, protestant) boys about how to keep the populace in check — that this power to pardon-at-will is a residue of a stubbornly enduring arrangement in which the patriarch holds sway over the lives and fortunes of everyone in the household, or perhaps a remnant of an aristocratic indulgence in meting out favor and fortune to favorites in the court. Either way, it is a principle entirely at odds with the ideals of democracy, justice and equality before the law.
Imagine a mother watching the killer of her children walk away without doing time, or a community that was poisoned for years as a result of governmental neglect or corruption seeing their negligent or corrupt leaders getting away with it. Outrage is appropriate in situations like these. Had Jeffrey Epstein been brave enough to live ’til the end of the Trump term (or been better protected in prison, whatever the case may be), he could very well be back in Florida right now terrorizing the very families he harmed so deeply in the past — because having been charged and convicted in a federal court, he is (was) eligible for a presidential pardon. Would it be beyond the pale for Trump to pardon a monster as depraved as Epstein? Probably not. But that’s not the point; the point is that he should not be able to do so, and the only way to safeguard against that is to do away with the presidential pardon altogether.
How does it make sense that Roger Stone is pardoned on a whim when there are people like Leonard Peltier, a Native American activist who has served over thirty years of a life sentence, the only person in the U.S. ever to be given such a penalty for “aiding and abetting a murder,” and whose trial is widely recognized to have been deeply flawed, who may legitimately deserve a pardon. It is cases like this, we would like to believe, that the Founders were concerned about when they handed the executive branch this power. But that belief is either belied or betrayed by what presidents are actually using this power for. Turns out that it is at least as useful in, and more often used for, the preferential treatment of the president’s friends and financiers. Whether the pardon power was meant to protect the mistakenly convicted or is a vestige of oligarchic exceptionalism, it is certainly not serving those who need it most.
The real purpose of government in general should be the protection of those who do not have power, who are not privileged. It is not the industrial agriculturalist — mislabeled “farmer” — who needs protection, and certainly not the fossil fuel industry, or the big banks. Nor is it the rightfully convicted rapist, murderer, or embezzler with powerful connections in the oligarchy. It is the single mother with two jobs who was caught with a joint; it is the Black or Latino son/father/brother who is overzealously meted out punishment for his crimes of desperation; it is the child who is condemned to live on a polluted planet, the trans teen who can still be denied medicine, a job, or even schooling; it is the elderly widow without a pension sufficient to afford her access to health care . . .
It is anyone who does not have the status and the luxury to make themselves invulnerable to the vagaries of human life under corporate capitalism. It is everyone who is not in the president’s pocket.
The problem, at its root, is politics. Politics, as opposed to government, is the ultimate — albeit sometimes subtle — justification of violence, the shape power takes when it is threatened or when it is used to displace the insecurity of those in positions of power. That’s why our capital is packed with panicked capitalists full of bluster and woefully short on courage, integrity or, most importantly to their actual role, the willingness to serve the citizens they bought or manipulated into voting for them.
Which explains why everyone in such positions condones the implementation of the president’s power to pardon, commute sentences, remit fines, offer restitution and grant reprieves to pretty much anyone he wants (note: I do not use the gender-neutral pronoun “they” but would very much welcome the opportunity to do so; we just need to finally elect a non-man as president).
If the power to pardon friends, lackeys, family members and anyone who has and may still cause deep and irreparable damage to many, if not millions, of people (our friends, families, etc.) weren’t so harmful, it would be hilarious. Like a farce. But, alas, it is a tragedy, and it is a travesty of justice. We punish criminals for a reason; it is a deeply embedded value we live by to demand justice for those who commit serious crimes, ones that cause us or our loved ones serious suffering. But all bets are off for justice when the president feels inclined to impugn the judgment of our courts, and when those very courts defend his right to do so while our elected representatives stand idly by with their hands tied, whether by conviction or by conspiration.
If we want to finish the process of creating a true democracy before it slips into demagoguery, we will have to do away with this vestige of privilege that is the presidential pardon, posthaste.
Sources in order of appearance:
“EX PARTE GARLAND.” LII / Legal Information Institute.
“U.S. Reports: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).” Library of Congress, Washington, D.C. 20540 USA.
