Trump’s pardons expose another gap in US legal system

The wave of corrupt presidential pardons began Wednesday. 

Christmas came three days early to felons George Papadopoulos, former Congressmen Duncan Hunter and Chris Collins, and 17 others.

Hunter and Collins lined their family’s pockets by misusing campaign funds or inside information. Papadopoulos lied to the FBI in the Mueller investigation.

More pardons may drop by the time this column publishes. The president is apparently so desperate about his coming vulnerability to indictments that he’s settled on a strategy of spreading pardons to develop herd immunity to prosecution.

America has no vaccine for this, but some future therapeutics are under development.

Among them is the Protecting Our Democracy Act, legislation that would ensure that the pardon power’s most corrupt and damaging uses are brought into the light of day.

Controversial presidential pardons are nothing new. George Washington first used the clemency power in 1795, when he pardoned two men convicted of treason for organizing the so-called Whiskey Rebellion. Two centuries later, President Gerald Ford again roiled the nation when he granted clemency to his predecessor, Richard Nixon, after Watergate.

And allegations of corruption are a familiar feature of pardons. In 2000, Bill Clinton pardoned financier Marc Rich. Rich’s family then made substantial financial contributions to Hillary Clinton’s New York senatorial campaign and to building Clinton’s presidential library.

But, as was the case with earlier pardon scandals, calls for reform went unheeded. That could soon change.

The Protecting Our Democracy Act would create transparency requirements involving disclosure of documents connected with “self-serving” uses of the president’s clemency power.

For now, however, the country must endure a sordid series of pardons like Trump’s  July 2020 commutation of Roger Stone’s sentence after his jury conviction for lying to Congress. As Sen. Mitt Romney (R-Utah) tweeted: “Unprecedented, historic corruption:  an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.”

Legal grounds for reforming the pardon power are found in the Constitution itself.

Article II’s “Take Care” Clause imposes on presidents the duty to faithfully execute the laws, and is properly interpreted to honor the Founders’ premise that we are a “government of laws not men.” A president using clemency for criminals who protect him from prosecution contradicts that principle.

Transparency would go a long way to deterring such abuses, and — where they do occur — to providing for accountability.

Take for example, Trump’s November 2020 pardon of Michael Flynn. Flynn confessed to lying to the FBI in violation of 18 USC §1001. Had the Protecting Our Democracy Act been in effect, Congress could have compelled the Justice Department to provide documentary materials relating to Flynn’s investigation.

Congress would also have new authority to subpoena White House communications relating to the pardon. While presidential assertions of “executive privilege” could be expected, some — including those relating to a corrupt bargain — would fail.

Similarly, the Act would provide for transparency should Trump’s ex-campaign chief, Paul Manafort get a Christmas or New Year’s pardon. Manafort’s conviction arose from an investigation of the president.

The Protecting Our Democracy Act would address the ability of future presidents to pardon themselves. The bill states that presidential self-pardons are unlawful.

The Justice Department itself issued a Nixon-era opinion about the impermissibility of such pardons. The opinion starts by reciting “the fundamental rule that no person may be the judge in his own case.”

To be sure, there are separation-of-powers questions about Congress’ limiting the scope of the pardon power. At minimum, in a future court challenge, the Justice Department could invoke Congress’ legislative declaration in the act as powerful support for the DOJ’s own determination.

Over four years, Trump has exposed many gaps in our legal system. The holes involving presidential accountability for abusing the pardon power are among the first that need addressing. As Supreme Court Justice Louis Brandeis once correctly observed, “If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.”

Austin Sarat is associate provost, associate dean of the faculty and William Nelson Cromwell Professor Jurisprudence and Political Science at Amherst College and author of “Mercy on Trial.” Dennis Aftergut is a former federal prosecutor and Supreme Court advocate, currently a Lawyers Defending American Democracy steering committee member.