April 24, 2024
Should Donald Trump be Pardoned?
Philip Kotler
Donald Trump, while President of the United States (2016–2020), issued pardons to 257 persons. Now he is an ex-President who would hope to be pardoned by the current president, Joe Biden, if he is convicted of a crime and jailed.
Here are the questions:
1. What is the source of the President’s power to pardon persons of crimes?
2. Should President Biden pardon ex-President Donald Trump if Trump is convicted?
3. If President Biden pardons Trump, what conditions can he attach to the pardon that Trump would have to sign?
4. Should the Presidential power to pardon or commute sentences be under stricter rules and control?
The Pardon Clause
The plenary power to grant a pardon or a reprieve is granted to the president by Article II, Section 2, Clause 1 of the Constitution. The only limits mentioned in the Constitution are that pardons are limited to federal offenses, and that they cannot affect an impeachment process: “The president shall … have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”.
All the American Presidents have issued pardons. The following Presidents have each issued more than 1,000 pardons:
Ulysses S. Grant (1332), Grover Cleveland (1107), Woodrow Wilson (2480), Calvin Coolidge (1545), Herbert Hoover (1385), Franklin Delano Roosevelt (3687), Henry S. Truman (2044), Dwight D. Eisenhower (1157), Lyndon B. Johnson (1189), and Barack Obama (1927).
Donald Trump during his one term Presidency issued only 237 pardons. Joe Biden so far issued only 11 pardons. With only 11 pardons so far, clearly Biden is a tougher pardoner than Donald Trump.
Many Presidential pardons are challenged in the courts or by Congress. Congress has declined to put any limits on the president’s discretion. Presidents can issue a full pardon, reverse a criminal conviction, issue a reprieve, commute a criminal sentence, lessen a penalty’s severity and/or its duration, or make the pardon conditional.
A President issues a pardon to express clemency and forgiveness in recognizing the person’s acceptance of responsibility for the crime and the subsequent good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence so much as the pardoned person’s contrition.
The President cannot pardon anyone for State crimes. Pardons for State crimes would have to be handled by governors. Nor can the President pardon to stop an officeholder from being impeached.
Should President Biden Consider Pardoning Donald Trump?
Many of Donald Trump’s supporters would like Biden to offer a pardon to Donald Trump if Trump is convicted in a federal court.
It would be President Biden’s need to enumerate the crimes of Donald Trump, consider the seriousness of each, and then make an overall decision.
The following crimes would be on the list:
1. Trump’s big lie that he won the 2020 election. He produced no evidence. Biden had a 4-point margin over Trump in the popular vote and a win of 306 to 232 in the Electoral College. Trump’s lie set a terrible precedent of an elected official denying that he lost the election.
2. Trump’s role in instigating the march toward the Capital and its occupation by thousands of protestors and the injuries to Capital officers and damage to the Capitol building.
3. Trump’s role in raising money by overstating or understating the value of his assets on different occasions.
Many other behaviors by Trump could be criticized but would not have standing in the pardoning issue. His uncivic behaviors include publicly slandering many well-known persons, having affairs with other women while married, raising money by selling flags, cigarette lighters, special shoes, customized bibles and many other “collectibles”.
I would predict that Biden would not pardon Trump because of the tremendous damage that he caused in polarizing our politics so that needed legislation could not be passed, damaging the Republican party, and damaging the nation’s reputation in the world with his admiration of Putin of Russia and Kim Jae-ryong of North Korea.
If Biden Pardons Trump, What Conditions would Trump Have to Sign?
If Biden pardoned Trump with no conditions, Trump will use “free speech” to attack Biden (who he now publicly calls “the worst President.” He would continue setting up huge rallies and making sure that the Republican party blocks all progressive legislation.
Trump would have to sign the following agreement:
1. I will not start or take any roles in public rallies.
2. I will desist from making public derogatory statements against public individuals.
3. I will not publicly state my views on political, economic or social questions.
4. I will agree that if I violate any of the preceding conditions, I will lose the pardon and face the consequences.
Should the President’s Power to Pardon or Commute be More Limited?
I would favor setting up a Pardon Committee of five to eight persons in the Senate who would review each proposed pardon and meet with the President to share the Committee’s view of the wisdom of that pardon. The President would take their recommendation into account but would still be free to make the decision he favors.
Conclusion
Donald Trump is not just another controversial figure that appeared in the history of the United States. We have had Confederate leaders who wanted to break up the United States. We have had spies who gave secret material to enemy nations during our battle with our enemies. We have had Mafia leaders who have used torture and death threats to extract money from innocent business people and citizens.
Yet Donald Trump is unique. His behavior raises questions not faced by many American institutions before. He has attacked our court system and the fairness of well-trained judges. He has attacked the mass media as endlessly discriminating against his views and policies. He has attacked the Democratic party as plotting to establish socialism or communism as our economic system. He favors restricting voting rights. He has declared that if he is elected, he will assume dictatorial powers to straighten out this “lost” country and make America great again.
Whenever some figure appears who has a following that treats him like a God or chosen by God, public citizens need to worry. Germany showed earlier how one evil person can get a whole nation to fawn on him, accept his racism, and agree to his incarcerating and killing millions of Jews. Fortunately Trump is not Hitler and fortunately he has as many persons who dislike him as love him.
The nation’s task is to figure out how to prevent an evil person from wantonly spreading lies and poisoning the body politic.
