Yuri Gripas/Abaca/Sipa USA via AP Images
Former President Donald Trump, with daughter Ivanka Trump and son-in-law Jared Kushner, attends a Hanukkah reception at the White House, December 11, 2019.
A variety of urgent democracy reforms are needed, such as ending the filibuster and restoring and strengthening the protections that were once covered by the 1965 Voting Rights Act.
Some of these reforms, including restraints on executive power and secrecy, protection of the independence of inspectors general, expansion of the Supreme Court and the size of the U.S. House, and even D.C. statehood, can be done by Congress—if Democrats can win a larger majority in Congress or get rid of the filibuster.
Many others, however, such as direct election of the president, will require amending the Constitution. By design, the Constitution makes it extremely hard to amend our fundamental document. It takes two-thirds of both houses plus ratification by three-fourths of the states.
However, there is one long-overdue reform of executive corruption that might win bipartisan support for a constitutional amendment. That, as our colleague Paul Starr has suggested, is ending the absolute presidential right of pardon. And when Paul wrote this article more than two months ago, the degree of Trump’s corruption in his pardons had not fully come to light.
Thanks to an investigative report by The New York Times, we now know in greater detail just how sickening the corruption was. You need to read it for yourself, but basically, a network whose center was Jared Kushner ran an old-fashioned kickback scheme.
Hire certain lawyers, such as Alan Dershowitz, or donate to one of two Hasidic groups closely associated with the Kushner family, and you could buy a pardon for some of the most grotesque white-collar criminals ever apprehended, convicted, or imprisoned. (As one well acquainted with the history of anti-Semitism, I have to add that this is one more case where the ultra-Orthodox are pushing their luck, and that of the wider Jewish community.)
This process of clemency-for-sale not only makes a mockery of the pardon process and brings corruption to the highest level of government. It debases and demoralizes the criminal justice system. It is hard enough to bring white-collar fraudsters to justice without having your work destroyed by the president of the United States.
But Trump’s corruption is old news. Why should Republicans support constraining the presidential pardon power? Well, we can thank one William Jefferson Clinton.
Trump’s pardons were more flagrant, but Bill Clinton’s were also a disgrace. The worst was a midnight pardon given to a serial scoundrel named Marc Rich, who was a fugitive from justice hiding in Switzerland. Rich had been convicted of 51 counts of tax fraud, and has also been involved as a middleman in several corrupt Iraq oil deals. His former wife was a major benefactor to the Clinton presidential library.
Given the history and invitation to kickbacks in exchange for pardons, you never know which party will abuse the pardon power in the future. So there could be appetite for reform in both parties.
The pardon power is a weird exception to the obsession of the constitutional Founders with limits on absolute executive power. It is literally the sole case where there are no checks and balances on the president.
According to professor William Duker, who has written the authoritative law review article on the subject, the presidential pardon power has English antecedents that go back as far as the Anglo-Saxon reign of King Ine of Wessex (A.D. 668–725), who had the power to grant his subjects mercy. For several hundred years, the absolute royal power to pardon was one of the irritants to successive parliaments, which attempted with mixed success to limit monarchic absolutism.
Beginning in 1673, courts ruled that kings could not interfere with rights of third-party citizens to secure justice at law. Thus, if a man was sentenced to death for taking someone’s life or property, the sovereign could not overturn that sentence.
Yet several of the British American colonies included in their charters an absolute prerogative of pardon for governors or other executives as the royal representatives. The 1620 Charter of New England granted colonial executives “full and absolute Power and Authority to correct, punish, pardon, govern, and rule.”
At the constitutional debates in 1787, Roger Sherman of Connecticut argued that a presidential pardon should have to be approved by a subsequent session of the Senate. His motion failed. Most delegates agreed with Alexander Hamilton, who favored a strong presidency and argued that the president should have absolute power as a “dispenser of mercy.”
The Founders did anticipate an aspiring tyrant like Donald Trump. But Hamilton, in his touching evocation of presidential mercy, did not quite anticipate corrupt courtiers like Jared Kushner or Alan Dershowitz.
For all of its glory, the American Constitution got a few things wrong. One was slavery. Another was the presidential pardon power.
If we want to rebuild some semblance of bipartisan comity, getting rid of presidential absolutism when it comes to the pardon would be a good place to begin.
