The presidential pardon power is about mercy, whether Trump understands that or not

It should surprise relatively nobody that President Donald Trump is reportedly considering issuing a pre-emptive pardon to Rudy Giuliani, his chief legal punching bag since Election Day. The New York Times didn’t have details on Tuesday about exactly which crimes Giuliani would potentially be forgiven for, but the possibility was “discussed with the president as recently as last week.”

Watching it all play out feels like watching a Nobel Peace Prize being used as a weapon to induce blunt force trauma.

It would make total sense that this would be the alleged reward for one of the president’s staunchest supporters. Trump has also reportedly asked about the possibility of pre-emptively pardoning two of his children and his son-in-law, too.

Even more intriguing and puzzling was a federal court record that was partially unsealed on Tuesday evening. According to the heavily redacted document, the Justice Department is investigating a potential plot that would have traded campaign donations for a presidential pardon. As of now we don't know the details about whether the president was ever aware of the conspiracy, or if any of the lawyers involved are connected to the president.

Both the alleged scheme and the former New York City mayor being in the running for a pardon fit with Trump's seeming belief in how a pardon should be used. Watching it all play out feels like watching a Nobel Peace Prize being used as a weapon to induce blunt force trauma — not just unethical, but against the very ideal on which the thing was created.

The presidential power of the pardon, baked into the Constitution as it is, is more or less absolute. After a lengthy debate over potential limits, that’s where the framers landed, having rejected limits like requiring Senate approval or granting pardons only after the grantee was convicted of a crime. In the end, the delegates to the conventions put their names to a document affirming that presidents “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

It’s unfortunate that Trump has decided to use this power only in the interests of himself and his followers.

The rationale behind that expansive ability makes sense even now. No system of justice is perfect in its manufacturing or deliverance, no matter how many laws are drafted by legislators listening to the better angels of their nature. It will always be the case that some sentences are too harsh for the crimes committed; some laws on the books will always be unjust. The pardon was designed as a small-r-republican version of the British monarch’s ability to grant reprieves, which for centuries was the only flexibility provided under the law’s rigid mores.

Chief Justice John Marshall in 1833 framed the president’s authority as a form of mercy, writing that pardons are “an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” That in and of itself is a noble concept, offering something the criminal justice system lacks all too often.

It’s the moral underpinning of past pardons like Presidents Jimmy Carter’s and Gerald Ford's mass forgiveness of Vietnam draft dodgers. It’s what prompted President Barack Obama to issue over 600 grants of commutation on the way out the door, including 330 on his last day, bringing his total to more than 1,700 in his eight years in office.

The vast majority of the Americans to see their sentences reduced during Obama’s last week were imprisoned for nonviolent drug offenses. The pile also included clemency for Chelsea Manning, convicted in 2013 of violating the Espionage Act by providing American military and diplomatic secrets to WikiLeaks, and retired Marine Gen. James Cartwright, who pleaded guilty in 2016 to lying during a leak probe. Freedom from the carceral system was in these cases the more just option, offering presidents a path toward healing societal ills.

It’s unfortunate then that Trump has decided to use this power only in the interests of himself and his followers. Trump has claimed otherwise, of course. He’s wielded his much-touted use of the power on behalf of Alice Marie Johnson — who was released from prison after Kim Kardashian West lobbied the president — to claim that he had more love for Black Americans than any other president. (Johnson was invited to speak at the Republican National Convention and was featured heavily in Trump campaign ads.)

In practice, though, he has amplified what former President George W. Bush called “a massive injustice in the system” in his memoir, “Decision Points,” where he wrote: “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”

It’s become common practice for lawyers seeking a reprieve for their clients to appear on Fox News to appeal directly to the president.

According to a recent piece in the New Yorker on death row inmates who had no real chance of having their cases adjudicated anytime soon, the DOJ’s team that evaluates pardon requests is in rough shape these days: “The Office of the Pardon Attorney, like so many federal agencies under Trump, lacks a permanent chief and a sense of mission. Rosalind Sargent-Burns, the interim director, supervises a staff that is reportedly demoralized by the White House’s lack of interest.”

Trump has so far granted clemency just 45 times, which, according to Pew Research, is less frequently than any president since William McKinley, who was assassinated partway through his term in 1901. Justice Department records show that when Trump’s time in office ends, he’ll leave behind a backlog of almost 14,000 petitions for clemency.

In the few times he’s doled out pardons, it’s been to right-wing celebrities and supporters like his first national security adviser, Michael Flynn, and former Arizona Sheriff Joe Arpaio. He’s reduced the sentences of white-collar criminals like former Illinois Gov. Rod Blagojevich and pardoned junk bond seller Michael Milken. He’s intervened in cases of U.S. troops accused of war crimes. He’s let political operative Roger Stone off the hook for lying during the Russia investigation. It’s become common practice for lawyers seeking a reprieve for their clients to appear on Fox News to appeal directly to the president.

The question arises over whether there can — or should — be anything done to constrain the president’s powers. In the short term, the answer appears to be a resounding “no.” Even if Giuliani is one of the unnamed conspirators in the DOJ investigation revealed on Tuesday, there’s nothing that can be done about it if Trump wants to go through with pardoning him — or any of pardons he has on his mind before he exits, for that matter. (The late Chief Justice William Taft — himself a former president — once wrote that impeachment is the best course of action to remove an executive who abuses the pardon, but ... it’s a bit late in the game for that.)

Looking to the future, the most important reform I can see would be preventing presidents from issuing a self-pardon for federal crimes committed before or during their time in office, something that Trump has reportedly raised in discussions with advisors. Such a law would almost certainly snake its way up to the Supreme Court, forcing a decision on whether there’s any line that a president can’t cross in his dispensation of pardons.

But more broadly, the fact remains that any prescriptive that would tie the hands of a future Trump-like president would bind a more judicious president as well. That includes a law that would cut off the sort of blanket pre-emptive pardons that would apply to Giuliani and that Ford granted Richard Nixon after his resignation, covering past crimes that have yet to be revealed. To do so would close off a necessary window for merciful absolution. It seems a risk that we have to accept then, that the person we choose to faithfully execute our laws has the greater good and compassion in mind when offering the state’s forbearance.