Writing from the perspective of a former federal prosecutor, Barbara McQuade decried President Donald Trump’s most recent exercise of the pardon power, which supposedly poses a grave threat to “anyone who is committed to our legal institutions, particularly federal law enforcement.” The remedy for such alleged abuse of discretion, she suggests, is to rely on the good judgment of the Office of the Pardon Attorney (OPA), the agency within the Justice Department that for many years has supervised the provision of advice to the president in clemency matters. The default standard for making such decisions, she further suggests, is contained in the U.S. Attorney’s Manual, according to which a “petitioner should be genuinely desirous of forgiveness rather than vindication.”
This has now become a familiar refrain among the president’s critics. But while reasonable minds might differ about the substantive merits of the president’s clemency decisions to date, McQuade’s critique exhibits both a remarkably impoverished view of the pardon power and an exaggerated confidence in the legitimacy of the extant advisory process.
To be sure, a pardon may be understood as an “act of grace,” a gesture of forgiveness for a past offense based on the applicant’s remorse and rehabilitation. Indeed, that may even be the norm in the garden variety case. But that is hardly the sole constitutional justification for the Pardon Clause. More fundamentally, as explained by none other than Judge Brett Kavanaugh, the pardon power is grounded in the separation of powers in order “to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior.” In this view, the pardon power thus “operate[s] as an independent protection for individual citizens against the enforcement of oppressive laws that Congress may have passed.”
In this regard, Kavanaugh is on solid historical ground. As James Iredell remarked at the North Carolina ratifying convention, despite the potential for abuse, the pardon power is justified, in part, because “[i]t is impossible for any general law to foresee and provide for all possible cases that may arise; and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice.”
Similarly, the Supreme Court has held that the pardon power is also a structural constraint on the Judicial Branch. In an opinion by Chief Justice William Taft (who of course wrote from personal experience, having also served as the 27th U.S. president), the Court recognized that “the administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential … to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments.” The pardon power thus “exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law.”
Accordingly, the president has both a right and a duty to exercise the pardon power because of his own constitutional concerns about a law or because of policy objections to enforcement of the law in a particular context. This principle was established as early as 1804, when upon taking office President Thomas Jefferson pardoned those who had been convicted under the Alien and Sedition Acts, which he believed to be unconstitutional. Similarly, President Woodrow Wilson granted dozens of pardons to persons convicted of liquor-related offenses under the Volstead Act, because of his constitutional objections to the law.
More recently, President Ronald Reagan granted pardon to former FBI agents Mark Felt and Edward Miller while their cases were still pending on appeal, on the grounds that they had not acted with criminal intent, but rather in a “good-faith belief that their actions were necessary to preserve the security interests of our country.” President George H.W. Bush pardoned the so-called Iran-Contra defendants, after indictment but prior to trial, based on his conclusion that the independent counsel’s prosecution had constituted the “criminalization of policy differences.” Prior to leaving office, President Clinton pardoned or commuted the sentences of numerous persons convicted in independent counsel investigations that had dogged his administration for basically the same reason. And President George W. Bush commuted the prison sentence of Lewis Libby, his vice president’s former chief of staff, after his conviction was affirmed but before he reported to prison. Bush reasoned that even if Libby had committed perjury in the context of a highly politicized grand jury investigation, a prison sentence would be excessively harsh punishment.
Granted over a period of more than 200 years, the common thread that ties these disparate acts of executive clemency together is the intersection of law and politics. In each case, the president made the judgment that partisan considerations had improperly influenced either the legislative or the judicial process, thereby undermining the moral legitimacy of strictly enforcing the letter of the law.
When the president exercises the pardon power for this reason, it is not an idiosyncratic exception to the normal operation of the federal criminal justice system. To the contrary, it is an integral part of the system of checks and balances embedded in the Constitution. As Justice Oliver Wendell Holmes wrote for a unanimous Court, a pardon “is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.” In this context, then, a pardon is a public act of grace, taken by the president in his official capacity as the chief executive, to preserve the integrity of the federal criminal justice system.
The only remaining question is who should exercise effective control over this broad discretionary power, a democratically elected president or a small cadre of anonymous bureaucrats in the Office of the Pardon Attorney (OPA)? Having served as a staff attorney in OPA for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter. Instead, OPA’s institutional function is to protect the Justice Department’s prosecutorial prerogatives by churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case. This is problematic because in the normal course, the only information the president receives about a case is whatever the Justice Department chooses to tell him. And in my entire tenure at OPA, I am not aware of a single instance in which a federal prosecutor acknowledged that one of her cases might have been affected by “undue harshness or evident mistake.”
There is no reason to believe that this situation has fundamentally changed, given the Justice Department’s inherent conflict of interest in each of these cases. In effect, the Justice Department’s advisory record amounts to the assertion that the federal criminal justice system is essentially perfect – injustices never occur, sentences are never excessive, circumstances never change, and mercy is never appropriate. No disinterested person really believes this. Accordingly, if Trump insists in going it alone, as McQuade complains, the Justice Department has no one but itself to blame.
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