In our system of checks and balances, the president’s unilateral power to grant pardons is a constitutional anomaly. (So, at least according to Donald Trump, is the right to impose tariffs. How’s that going?)
Presidents enjoy this power thanks principally to the advocacy of Alexander Hamilton at the Constitutional Convention in 1787. “Without an easy access to exceptions in favor of unfortunate guilt,” he later wrote, “justice would wear a countenance too sanguinary and cruel.” He said that such a heavy responsibility—the right to decide, in the president’s sole discretion, between freedom or confinement, even life or death—would “naturally inspire scrupulousness and caution.”
Naturally? Not lately. Despite Hamilton’s fond hope, Trump has turned the pardon power into a sort of constitutional piggy bank, whose contents he is using to reward a sleazy array of scammers, political allies, crypto crooks, and enemies of the Bidens.
In recent decades, presidents have tended to announce their most controversial pardons in the final days of their terms, to tuck away these low moments from public attention and accountability. That was when George H. W. Bush gave free passes to the Iran-Contra defendants, Bill Clinton blessed the fugitive financier Marc Rich, and Joe Biden conferred absolution on his son Hunter as well as other family members. But second-term Trump, his shamelessness on the rise, has all but boasted that he’s going to pardon anyone he wants at any time he prefers.
On the very first day of his second term, he pardoned more than 1,500 people who had rioted at the Capitol on January 6, 2021, many of whom attacked police officers. And Trump has followed that disgraceful act with a series of additional appalling pardons.
There are reasons, if not a method, to Trump’s madness. For starters, pardons offer a cheap way to reward political allies. For the anti-abortion movement, which has been a key part of his political base, Trump gave pardons to 23 protesters who had been convicted of invading and blockading clinics. He has also become a latter-day advocate for, and grifter in, the crypto business, which explains why he chose to pardon Ross Ulbricht, who was serving a life sentence for running an underground marketplace used by drug dealers. Trump has played racial politics, too, pardoning two white police officers in the District of Columbia who had been convicted of murder and obstruction of justice in connection with their chase of a Black suspect in 2020.
The president nursed his obsession with the Bidens by pardoning Devon Archer, Hunter Biden’s erstwhile business partner, who offered testimony to congressional conspiracy theorists about alleged (and never proved) perfidies of the Biden clan. Archer had been convicted in an unrelated scam in which he defrauded pension funds and a Native American tribe of tens of millions of dollars. Thanks to the pardon, Archer didn’t have to report to serve his year-and-a-day prison sentence or pay millions in fines and restitution. Jason Galanis, who also testified against Hunter Biden, won a commutation of his fourteen-and-a-half-year sentence in connection with his conviction in the same fraudulent scheme as Archer’s.
Trump has also proved to be a soft touch for claims of unfair prosecution from the Justice Department under Democratic presidents. Rod Blagojevich, the former governor of Illinois, was convicted in 2011 of trying to sell, for profit, the seat in the U.S. Senate that Barack Obama had vacated to become president. Trump commuted Blagojevich’s 14-year sentence in 2020, and then the former Democratic governor turned into a fulsome Trump ally.
Sycophancy works. Earlier this year, Trump responded with a full pardon for the corrupt pol, which erases all consequences of his criminal conviction, thereby restoring his voting rights and the ability to purchase firearms. After similar claims of unjust targeting by the Biden Justice Department, Carlos Watson, the onetime entrepreneur behind Ozy Media, a briefly hyped conglomeration of newsletters, podcasts, and chat shows, won a commutation from Trump on the eve of reporting for his nearly 10-year sentence for defrauding investors.
Hamilton modeled the pardon power on that of the British monarch, which would no doubt please Trump’s royalist soul. Many of our peer democratic nations, including France, Australia, and Canada, as well as the United Kingdom, have pardon laws on their books, though they are rarely used in controversial cases, and there’s been nothing like Trump’s crony offensive. (Alfred Dreyfus, the French Army officer who was the victim of an anti-Semitic treason prosecution in the 19th century, was pardoned in 1899 and exonerated in 1906. Queen Elizabeth II mostly gave posthumous pardons, including several in 2006 to deserters who had been executed during World War I and another, in 2013, to Alan Turing, the legendary World War II codebreaker who was prosecuted and chemically castrated for having sex with another man in 1952.)
What, if anything, can be done about Trump’s abuse of the pardon power? The problem is that Hamilton and the other Framers operated on the assumption that the presidency would forever remain in the hands of men (always men) who understood that the national interest did not necessarily coincide with their own political and financial fate. In other words, they didn’t figure on Trump. So they locked down the pardon power in the exceedingly difficult-to-amend Constitution. Now we’re stuck with it, and him.
Jeffrey Toobin, a legal analyst and journalist, is the author of many books, including The Pardon: The Politics of Presidential Mercy