Thursday, December 24, 2020

The time for presidential pardons has come and gone

The right of US presidents to issue judicial pardons from federal (but not state) crimes is one of the dafter ideas in the American Constitution, and surely the time has come to do away with it. I'm surprised not to see more of a call for this on the internet.

The provision for presidential pardons is enshrined in the US Constitution, and is based loosely on the ancient right of English kings to issue clemency. It effectively puts the president above the law in the the worst possible way, and is singularly open to abuse. 

It is supposed to be used to address systemic or egregious injustices, but often it is used as a personal favour or to reward loyal partisans. All presidents have taken advantage of it, both Republican and Democrat, some to a greater extent than others. Barack Obama, for example, pardoned 212 people over his eight years in power. Many of the pardons over the years have been controversial. Also, it seems like a pardon cannot be reversed by a subsequent president or the courts.

Interestingly, Donald Trump has not availed himself of such a potentially powerful political weapon as often as might have been expected - fewer than 100 times thus far - although he still has almost a month in which to rectify that. Most of his pardons have been very much in the mould of the personal rather than the ideological (and many are definitely controversial), such as his recent pardons for several of the figures in the  Russian election interference investigation and former Blackwater security guards.

Personally, I don't see any place for it in modern politics. I have read articles arguing that presidential pardons are an essential part of American democracy, but the arguments seem very thin to me. They rely on voters only voting in honourable and sensible presidents, but that has clearly broken down in recent years. The Biden administration should show its moral chops by calling for its repeal.

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