Daily Herald opinion: A power of kings: Presidential pardons are outdated, ripe for abuse and must be curtailed
Let's see, should we start by mentioning President Donald Trump's blanket pardon of virtually all of the hundreds of convicts from the Jan. 6 riots at the U.S. Capitol in 2021? Or perhaps his pardon of cryptocurrency billionaire Changpeng Zhao, the founder of Binance with unseemly ties to Trump-family business World Liberty Financial? Or maybe his pardon of Juan Orlando Hernandez, the former Honduras president convicted of drug trafficking and gun possession?
There have been, some might argue, more poignant human costs of Trump pardons. According to a recent expose in the Washington Post, there's major Trump donor Trevor Milton, whose pardon wiped out hundreds of millions of dollars in restitution his defrauded investors expected he would be forced to pay. The Post report also cited Ponzi schemer Marian Morgan, who was freed from a judge's order to repay millions of dollars in restitution to dozens of investors. And convicted tax cheat Paul Walczak, who not only was freed by a pardon from serving a day in prison but also spared from repaying taxpayers $4 million. Real people lost savings and investments because of these pardons, and there are many more examples of them. Some estimates put the lost restitution at more than $1 billion for relatively average people who were hoping the courts would provide justice for the frauds that were committed against them.
It was after the Hernandez pardon that thehill.com quoted Sen. Chris Murphy of Connecticut complaining, “The pardons Trump is handing out are a huge, growing scandal that not enough people are talking about. This is a money-making operation — for Trump, his family, his crypto pals, and the Trump-affiliated lobbyists and grifters who the pardon seekers pay.”
Yes, we could devote all of this space to an assessment of the argument that Trump's use of the presidential pardon power may be the most cynical in the history of the republic. In less that a year, not to mention his first term, he has provided critics with a long list of pardons that frequently appear defensible only with classic MAGA whataboutism over the jaded use of Joe Biden's autopen.
To be fair, Murphy has a bit of a track record questioning the breadth of presidential pardon power. Last January, in the wake of Biden's unprecedented preemptive pardons for family members and those involved in investigating Trump's efforts to overturn the results of the 2020 election, Murphy told thehill.com, “It’s probably time for us to take a look at the way the pardon system is being used … I have sympathy for President Biden, but I don’t know that the extent of the pardons he granted was necessary, and I don’t think any of us can be satisfied with the way that Trump or Biden used the pardon authority, one of the most extensive and sweeping executive powers that are available today.”
To anyone familiar with our commentaries over the years, it should come as no surprise that any wish list of constitutional amendments we might offer would include one for restrictions on pardon power. We have used this space to bemoan misuse of pardon power for decades — going back, institutional memory recalls, at least to Bill Clinton's office-exit pardon of billionaire financier Marc Rich, whose ex-wife made large donations to the Clinton Library and the Democratic Party.
Look, we understand that pardons are not necessarily malevolent. We buy the argument that Gerald Ford's pardon of Richard Nixon was intended to heal the country, as was Jimmy Carter's amnesty for Vietnam War draft dodgers. We do not necessarily have to agree with either of those historic pardons to appreciate that they appear to have come with good intentions. And there are, indeed, times when pardons — fully considered and administered — can right systemic wrongs.
But as we said in this space last February, pardons are too often cynical, even corrupt. They are at times little more than favors passed off as compassion or political payback doled out under the guise of justice.
And as we said last December after Biden pardoned his son Hunter, we were hardly surprised. Why wouldn't he? What father would not pardon his son? But the question is, why should he have been able to? Why, simply because he is president, should he get such special privilege?
It is the power of kings, not the power of stewards elected to represent the people.
Why should one person get to decide any of this? Why should that be allowed for one person who in fact theoretically can — and apparently does in the latest White House — decide these awesome things on the basis of whim or favor?
Pardon power was written into the Constitution at a much different time, during an era of monarchs and despots that ingrained the power as a residue of our heritage. It is outdated today and ripe for abuse.
Today, many countries restrain this power with restrictions that require consultation and review boards and those that define specific criteria and limits. There is no reason other than our political gridlock that the United States could not carve out similar effective reforms. As of today, it feels like a bit of wishful thinking. But it is a wish we all should aspire to make real.