To Err is human, to Pardon…
My apologies for my abbreviated paraphrase of Alexander Pope’s far more profound and lasting testimony to that which distinguishes us from God. But in light of the flurry of out-the-door and moving-in presidential acts of the past several days, it struck me as both timely and appropriate. The list of presidential pardons signed by our outgoing and incoming presidents has set my mind to wondering how often such judicial fiats have been issued by our chief executives. What I have discovered seemed worth publishing for a wider audience of those who may be as concerned as I over what is now taking place.
Issuing pardons is one of the most well-photographed ceremonial, albeit fowl, acts that both Trump and Biden have done before. But sparing a turkey from a beheading is a far cry from weighing in on the already adjudicated sentences of Americans accused of some criminal violation. One makes us smile as we prepare to enjoy the carcass of a less fortunate member of the avian species as is our Thanksgiving custom. The other makes us wonder how accurate or trustworthy is the system of law and order which we so eagerly watch in television procedural dramas and so predictably profess to support and defend in inaugural speeches. That presidents can and do pardon criminals or suspected criminals is, however, well within their constitutional authority.
In fact, every president that has served our country, with the exception of two whose terms ended in their death during their first year in office, has taken advantage of this specified power given that office. The chart below provides us with comparative statistics on the pardoning records of the 13 presidents who’ve extended leniency to more than 1,000 convicted persons during their terms in office. Both Mr. Biden and Mr. Trump rank high on that list, each including large numbers who were previously indicted, some imprisoned, for drug possession or assault on the U. S. Capitol. My historical nearsightedness at first led me to think that presidential pardons occurred mostly in my own lifetime. But that obviously is not the case. Taken as a whole our 46 different presidents have pardoned an average of 118 persons/administration, and commuted the prison sentences of 88 persons/administration on average.
Since the end of President McKinley’s first term in 1902, Democratic presidents have outpaced Republicans in both pardons (8,458 to 5,940) and commutations (8,264 to 2,528). I find it interesting that among recent presidents, both father Bush and his son overturned the fewest number of criminal judgments (241 pardons between them). What could be an alarming trend is how our last three presidents (Biden, Trump and Obama) rank as 1st, 6th and 7th among the most willing to encroach into the judicial branch of government in pardoning those already convicted of some crime by our courts.
The issuing of pardons may strike us as presidential grandstanding or the settling of old scores against their political opponents. But pardons also carry with them the chief executive’s prerogative to try to unify the country or strike a note of compassion in enhancing the common good. That seems to have been what may have moved Washington to forgive some of Daniel Shay’s tax rebels, or Lincoln’s successors to attempt to heal the gaping wounds torn open in the Civil War, or Gerald Ford’s initiative in moving past the rancor and division created by Nixon’s Watergate scandal. And it certainly seems to have inspired Jimmy Carter to go out on a limb in restoring full citizenship to those who had left the country in refusing to serve in Vietnam.
But the smell of nepotism is hard to avoid when presidents pardon or grant amnesty to members of their families or to their political cronies as did Nixon (Jimmy Hoffa) Clinton (his extended family), Trump (Gen. Flynn, Roger Stone, Paul Manafort and Steve Bannon among them) and Biden (son Hunter, brother James and family, as well as Dr Fauci, Gen. Milley, and members of the January 6th congressional committee). This last grouping is less a pardon and more of a preemptive gesture that qualifies as an amnesty in case of future prosecution from the incoming president. At least one of these persons, Adam Kinzinger, has gone on record as not wanting a pardon since he regards his actions in challenging President Trump’s conduct on January 6, 2020 as being legal and warranted for a member of the House of Representatives. As welcome as a pardon might appear, it does insinuate that one is, in fact, guilty of something requiring absolution.
Pardoning criminals is only one of several powers our presidents have been constitutionally authorized to use as appropriate. The others include…
As much as each of these do serve to empower presidents, they are not without certain restrictions or limits. They only apply to federal crimes, not those settled in state or local courts, and they provide no authority to presidents in overriding impeachments successfully prosecuted by the legislative branch of the government. Nonetheless they do reflect the power our founders sought to place in the hand of its chief executive as part of their wizened decision to create a government in which all three branches share in the responsibility to check and balance what each of the other is doing.
Aside from the executive’s legal right to enact any of these four measures to mitigate punishments, the larger issue for me is the impact that these proclamations have on our judicial system, the office of the president, and the well being of the body politic which has elected him to office and to which he owes both his respect and his service. Certainly the judges who presided over lengthy and costly trials that led to convictions must feel it a slap in the face when presidents overturn their decisions. And what of those juries who did their civic duty and came to a verdict—how impotent they must feel when their judgments are later overridden by presidential signature. I’m quite certain that hearing of suspended sentences, while it will cause some to rejoice in their newly granted freedom, will leave many more with a bad taste in their mouths as to the efficacy of our court system or the merit of living within the law. I am beginning to fear that the antidote for the “lawfare” that some claim has now politicized our justice agencies is motivating others to compensate by disregarding the lawful judgments rendered by those we’ve elected or appointed to serve us as judges, district attorneys and police officers.
Perhaps the greatest unintended consequence of presidential pardons on the scale we are now witnessing is the erosion in confidence and trust it creates in American citizens who want their leaders to be fair, honest and forthright in their judgments. Right now it all appears to be a game we have become rather proficient in playing out in our various political arenas, with such parochial and retributive standards of justice that anything other than winner-take-all outcomes is assured. Worse yet, it makes it ever more unlikely that we will be able to find that middle ground which has been, and will continue to be, the only avenue by which this great republic can possibly transform its pluribus into an unum that can ever serve the common good.
Like Mr. Pope, I’m happy and even relieved that God and God alone is the ultimate source of that greatest of all spiritual gifts: forgiveness. While we do well to emulate what God has planted in our hearts when we are inclined to be forgiving of each other, we invariably fall a bit short of that Christlike ideal. But of this I am quite certain: no presidential actions, not even pardons and amnesties, can come close to the Divine spirit that ultimately has both the power and the grace to set us free.
