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I beg your pardon: A deeper look at the president’s pardoning power


One of the interesting aspects of the Jan. 6 commission’s investigation into the Capitol violation is the number of individuals begging for last-minute pardons when President Trump was on his way out. The Oval Office must have been a boisterous, bustling center with pardons figuratively pouring in under the door, over the mirror, and through the window.

According to information released by the select committee, nine people have so far requested preventive, general pardons during the final days of the Trump administration. Among them were six incumbent House Republicans: Representatives Andy Biggs (Ariz.), Mo Brooks (Ala.), Matt Gaetz (Fla.), Louie Gohmert (Texas), Scott Perry (Pa.), and Marjorie Taylor Greene (Ga.). The other three clemency applications were reportedly sought by Trump’s chief of staff Mark Meadows and personal attorneys Rudy Giuliani and John Eastman. Some of those clients have denied ever asking for a clemency.

The great irony is that, to our knowledge, the president has granted none of those requests, although he had previously pardoned his former defense counsel Steve Bannon and former National Security Council adviser Michael Flynn for crimes that had nothing to do with it. with the imbroglio of the electoral count. How could this be when these nine Trump loyalists went to such lengths to promote “The Big Lie” and come up with all sorts of legally questionable schemes to disrupt, derail and reverse the outcome?

Rep. Adam Kinzinger (R-Ill.), a select committee member, may have indirectly suggested the answer when he stated during the June 23 hearing, “The only reason I know of asking for a pardon is because you think you’re committing a crime. ” By that same line of reasoning, if the president granted those last-minute pardons, it may have seemed like he was aware of and complicit in the commission of crimes. In other words, ignoring the clemency applicants gave him plausible denial that he knew illegal acts were being committed on his orders.

Another plausible explanation is that the president expressed disappointment that their efforts had failed. To him they were the “losers”, not him. He couldn’t care less about their fate and instead only thought about himself and his viability as a presidential candidate in 2024. He was certainly aware of the likely part of President Gerald R. Ford’s 1974 pardon of former president Richard Nixon starred in Ford’s election loss to former Georgia Gov. Jimmy Carter in 1976.

The President’s pardon power is clearly stated in Article II, Section 2, of the Constitution: “…he shall have the power to grant reprieve and pardon for crimes committed against the United States, except in cases of impeachment.” The only substantive issue that arose during the constitutional convention debates over the clause came in the form of an amendment offered by Connecticut Representative Roger Sherman to submit a pardon to “Senate consent.” The amendment was rejected, one against eight.

In Federalist No. 74, Alexander Hamilton noted that some preferred to pardon the crime of treason subject to the “consent of one or both branches of the legislative body.” He concluded, however, that power is best left only to the president: “In seasons of insurrection or rebellion,” he wrote, “there are often critical moments when a well-timed offer of pardons to the insurgents or rebels can restore calm.” of the Commonwealth.” In such cases, “the slow process of convening the legislature” to approve the pardon could mean missing a “golden opportunity” to resolve the crisis: “The loss of a week, a day, a hours can sometimes be fatal.”

As Cassidy Hutchinson, a top aide to Mark Meadows, testified last week, White House attorney Pat Cipollone told her that after the attack, the president was seriously considering pardoning all those who violated the Capitol and assaulted the police. grant. He was talked out of it. It was not a Hamiltonian moment for Trump: the insurgency had already been crushed and calm had been restored.

President Trump was not stingy about handing out pardons during his four years in office. He spent 237 in total — still less than any other modern president. What was different was that most of those clemency requests passed the normal process go through the Department of Justice’s Office of Pardon Attorney (OPA) first. Most of Trump’s pardons were awarded to well-connected convicts convicted of fraud or corruption. They hadn’t bothered to petition the OPA first and comply with the requirements. Apparently, the nine applicants for a pardon were a day late and a dollar short of qualifying for the OPA bypass express through the Oval.

Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.” The opinions expressed are solely his own.