Sarlacc Summary: Pardons

Welcome to the Sarlacc Summary! Unlike the newsletter earlier in the month, this one will not focus on the podcast, but rather on an issue that is getting a lot of attention in the press. Nothing happens in a vacuum, and many decisions have a context that spans multiple years, decades, and administrations. Sarlacc Summary is an attempt bring some of that context to your inbox, without all the noise surrounding the articles shoved in your face right now. For the inaugural Sarlacc Summary, we’re gonna talk about one of the most unchecked powers the President has, the Presidential Pardon.

Of course, choosing the Presidential Pardon as the first story makes sense when you consider that Trump lasted less than 24 hours into his second term before using his Pardon on every person who took part in the January 6th Insurrection. In doing so, he has brought the Pardon into new and uncharted territory—pardoning enemies of the Republic. News outlets are right to be concerned, but this is a power that even the founders did not think would be abused to this degree, even though the further we get from 1776, the more apparent the abuse becomes.

Starting with the power of a Presidential Power, it is outlined in Article 2, Section 2 of the U.S. Constitution. Specifically, it states, “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The Constitution only places one restriction, and courts have added one additional restriction. Starting with the exception in the text, a President may not pardon somebody who has been properly Impeached. Meaning that Trump can not pardon himself for the two impeachments that he received during his last administration. Courts also interpreted the “Offences against the United States” to exclude state charges and crimes from the jurisdiction of pardons. That is what makes Trump’s 34 Felonies such a stain on his record, because they are felonies in the State of New York, and therefore something he can not pardon. Aside from those two exceptions, the constitution leaves an incredible amount of leeway for Presidents. Perhaps they envisioned that Presidents would always have the interest of the country as their guiding principle. However, history has shown us that the President is capable of putting themselves before their country.

The most notable example of a President abusing the power of the Pardon comes from President Gerald Ford who started his tenure as President after Nixon resigned in the wake of the Watergate Scandal. President Ford gave a “full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed.” It was a shocking use of the power because Ford had assumed the Presidency only after the scandal had gotten so out of hand that Nixon was informed by Republicans in the majority in congress, his own party, that if he did not resign they would have the votes to not only impeach him, but also remove him from office. To avoid the impeachment, which can’t be pardoned either, Nixon simply left the office. In order to put the matter behind him and get a shot at actually governing, President Ford extended the pardon, putting Watergate behind him and the nation.

Moving into the 2000s, Trump had already shown us who he is by raising the bar for questionable Pardons. Before leaving the office the first time, Trump gave a series of sweeping pardons to people in his innermost circle. Some of these were for crimes completely unrelated to Trump’s own crimes, like Charles Kushner. Others received pardons for criminal conduct that expressly shielded Trump for actions he took that did earn him an impeachment, Roger Stone is in this category. Unlike Ford’s pardon, which was really to help the nation move beyond a scandal, Trump used the pardon specifically to reward the loyalty of people within his orbit. Roger Stone and Stephen Bannon, who also received a pardon later on, routinely refused to work with prosecutors, judges, and even the Special Counsel, to cover up their crimes and those of their boss—The President of the United States. As a result of their efforts, they received pardons and the case was dragged out through the entirety of Trump’s first term, making it almost impossible to hold him accountable for his behavior.

From there, it is a hop and a skip to the headlines of today, with only one extra wrinkle to add from President Biden. On his last day in office, Biden charted new territory for the Presidential Pardon. Similar to President Ford, Biden used Pardons to put an end to multiple threads. Unlike President Ford, Biden pardoned people that didn’t do anything wrong, instead using the Pardon to shield individuals from the wrath of an incoming Trump. Both Anthony Fauci and the legislators that investigated the January 6th insurrection were pardoned, alongside members of Biden’s family. These were targeted Pardons, recognizing that Trump had routinely threatened these individuals on the campaign trail. With this being some of Biden’s final Pardons, it makes the Pardons that Trump granted almost as soon as he finished the Oath of Office that much more troubling. Using a Pardon as a shield is a unique use of the power; using it hours later to reward people who attacked the very country they are citizens of is a special kind of alarming. Richard Nixon may have tried to influence an election, but Trump pardoned people who violently attempted to change an election.