June 10, 2018
Former US Pardon Attorney explains why "Trump’s pardons are really not out of the ordinary"
Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997, has this terrific recent Washington Post piece headlined "Trump’s pardons really aren’t out of the ordinary." Here is how it starts and ends:
President Trump’s newfound enthusiasm for his pardon power has evoked consternation among his critics, in part because he appears to have bypassed the Justice Department’s pardon advisory program. But having managed that program for almost a decade during the first Bush and Clinton administrations, and represented applicants for pardon and sentence commutation in the 20 years since, I find much of this criticism unwarranted.
There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional. His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law. While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system.
Moreover, each of his grants has some precedent in recent pardon practice. His most recent grant, to Alice Marie Johnson, a woman serving a life sentence for involvement in drug trafficking, carries on President Barack Obama’s program of sentence commutations. Even his pardon of former Maricopa County, Ariz., sheriff Joe Arpaio last summer echoes President Ronald Reagan’s decision to fulfill a campaign promise by preemptivelypardoning two FBI officials who had approved illegal surveillance of domestic terrorists.
In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated. That is how the pardon power was designed to work by the framers of the Constitution.
But while Trump’s pardons are hardly unique, the process that produced them is troublesome. Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy. This makes a mockery of the pardon power’s historical operation as part of the justice system, manifested by its administration by the Justice Department since the Civil War. President Bill Clinton similarly avoided the ordinary pardon review process at the end of his presidency, depriving his grants of legitimacy and threatening long-term damage to his reputation....
As a [reform] model, the federal government might consider Delaware’s clemency system, in which an official board chaired by the lieutenant governor serves as gatekeeper to the governor’s pardon power. This board and its small staff have produced hundreds of recommendations each year, mostly accepted by the governor. Significantly, the Delaware attorney general’s role is strictly one of an advocate.
While the president’s pardoning options could not be limited without a constitutional amendment, the many practical and political virtues of a Delaware-like management system should encourage presidential compliance. Congress might even offer a record-sealing benefit for cases that go through the regular process, as South Dakota’s legislature did several years ago after hundreds of “secret” gubernatorial pardons came to light. This would not only lend greater credibility to specific grants but could also allow pardons to play a more effective role in regulating the operation of the justice system and encouraging law reform.
There are many reasons to be guardedly grateful that Trump has taken an interest in this time-honored constitutional power. But now we must encourage him to use it more responsibly for the benefit of those who have no friends in high places, if not for the benefit of his own legacy.
A few of many recent related posts about recent Trumpian clemency activity:
- Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?
- As Kim Kardashian heads to White House, I hope she advocates for many federal offenders excessively sentenced
- Prez Trump meets with Kim Kardashian to discuss clemency ... and then tweets that he "Will be giving a Full Pardon to Dinesh D’Souza"
- Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency"
- Is all the recent Trump clemency action creating (unhealthy?) excitement among federal prisoners?
- Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"
- Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more
- Any suggestions for Prez Trump's "growing list of potential pardons or commutations"?
June 10, 2018 at 12:21 PM | Permalink