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Mark Osler: Clemency and the last days of Trump

Mark Osler: Clemency and the last days of Trump

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Sunday toon

Being an expert on clemency is like being Santa Claus: Everyone wants to talk to you for just a few days a year when controversial clemency grants are announced. The rest of the time it’s kind of awkward. But we are in those few days, as the Trump administration winds to a close. Now that even Mitch McConnell has conceded that Joe Biden won the election, news about President Trump will largely revolve around his rumored 2024 presidential campaign, golf and how he’s dealing with the flood of clemency requests flooding the White House in these last weeks in hope of a wave of grants in the waning days.

“That’s normal, right?” some people ask me. “Don’t most presidents grant clemency right at the end of their last term?” Well, not really. This supposed grand tradition actually started with Bill Clinton in 2001 — before that, clemency was much more evenly spread out through entire terms. By far the biggest years for clemency grants under Ronald Reagan, for example, were 1982 (86 grants) and 1983 (93), which were two of his first three years in office. President Carter’s biggest year was his second (165 in 1978), Ford granted thousands in his first two years (including a special program for Vietnam-era military offenders) and Nixon’s biggest year was his fourth (253 in 1972). Bill Clinton’s terrible example of granting gobs of questionable clemency grants on his way out the door is nothing to emulate.

Beyond that, the questions I get these days primarily deal with the scope of the pardon power created by the United States Constitution: “Can the president pardon someone who has not been convicted? And can he pardon himself?” The answers are yes to both — though I suppose those answers need some elaboration.

I’ve spent the past few days burying my mind in James Madison’s notes of the Constitutional Convention in 1787. It’s fascinating stuff — the Founders were unique and compelling characters. Making it all the better is the fact that they spent substantial time talking about the pardon clause, which establishes that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” They got to the discussion of clemency late in the game after many other issues had been resolved, but their discussion is relevant to many of the questions raised today.

Let’s start with the question of whether a pardon can go to someone who hasn’t yet been convicted of a crime. The clear answer is “yes,” and it has happened several times in U.S. history. Most recently, President Trump pardoned Mathew Golsteyn, who was charged but not yet convicted of premeditated murder at the time of the pardon. That breadth is consistent with the intent of the Constitution’s authors, too — at the Constitutional Convention it was moved and seconded to add the words “after conviction” to the pardon clause, but this idea was rejected. A related question is whether someone can get a pardon before they’re even charged, and the answer to that appears to be “yes.” Most notably, President Ford granted a pardon to his predecessor, Richard Nixon, before Nixon had been charged with a crime.

We do know there’s one firm line, though: A pardon can’t cover crimes that haven’t been committed at the time of the pardon. Pre-approving crime is a terrible idea, of course, but it also would likely be viewed as running afoul of the language of the Constitution itself, which refers to the power to pardon “offenses against the United States,” a term that seems to reflect offenses existing at the time of the pardon. The same language keeps the president from pardoning state crimes.

Can the president pardon himself? It might be a bad idea, but it doesn’t seem that the Constitution limits this. A memo from the Justice Department’s Office of Legal Counsel during Watergate briefly mentioned that this would be improper, since a self-pardon runs against the general legal principle that one cannot judge his or her own case.

I disagree, for two reasons.

First, a broad, unrestricted constitutional power is going to win out over common-law precepts. In the four and a half decades since the OLC memo was issued, presidential power under the Constitution has expanded while the sway of common-law precepts has waned.

Second, in a way this did come up at the Constitutional Convention. Edmund Randolph moved to create an exception to the pardon power for treason. In making his argument, he said (quoting Madison’s notes here, which were not a transcript): “The president himself may be guilty. The Traytors [sic] may be his own instruments.” The amendment was rejected. In other words, the Framers expressly considered the fact that the president may be the guilty party needing pardon — and declined to limit that power.

Should the breadth of the pardon power ever come before the Supreme Court, we can expect them to look back to the discussions in Philadelphia in 1787. What they’ll see is a determination to give the president an unencumbered tool of mercy and a hope that holders of that office will wield it with wisdom. We should hope for the same from President Trump.

Mark Osler is the Robert and Marion Short Professor of Law at the University of St. Thomas in Minneapolis. He taught at Baylor Law School from 2000 to 2010. His books include “Prosecuting Jesus,” a memoir of performing the Trial of Jesus in 11 states.

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