This forgotten component of the criminal justice system, clemency, requires reform. In the spirit of social justice, I believe this type of criminal justice reform deserves attention and the opportunity for all to access it.
It is clear that a President can grant or deny clemency as a constitutional right that comes with the office of the Presidency. The Office of the Pardon Attorney was put in place to ensure a non-partisan review of the process; however, the inherent biases of the criminal justice system exist in the last and final phase of the criminal justice system—clemency.
IT’S THE INJUSTICE FOR ME: IT’S NEVER BEEN DONE BEFORE
While he did not pardon himself, that we know of, Trump very well could have in my opinion. A preemptive Presidential self-pardon has never been done before but the Constitution’s Presidential Pardon Powers under Article II, Section II, Clause I of the Constitution are broad and have not been tested in this way. There is nothing to limit Trump in exercising his Constitutional right, even on himself. Preemptive pardons, pardons of those before they were charged, convicted, or sentenced, have actually been issued before, so in terms of testing the validity of it, the previous preemptive pardons of Richard Nixon, Vietnam War Draft Dodgers, Casper Weinberger, & Joseph Arpaio will be the comparators. In terms of charges, the impeachment is a charge and can be swept up in the pardon. Remember the Constitution controls the pardon process, not Congress. If the previous preemptive pardons did not get tested by a U.S. Attorney’s Office trying to subsequently bring the previous or pending federal charges against the individuals preemptively pardoned, I do not believe it would be appropriate to do so if Trump has issued himself a pardon. Those previous preemptive pardons are the closest thing to what would be considered binding precedent.
If you had the ability to use a get out of jail free card, wouldn’t you use it? Given the recent July 2020 decision by the U.S. Supreme Court, in which two of his appointees, Brett Kavanaugh and Neil Gorsuch ruled against him, it was held that the Constitution did not give him absolute immunity, even as a sitting president, let alone once he is out of office. His former allies, even Mitch McConnell, are no longer loyal. It's the possibility for me. This is why we need reform.
Regarding the speculation of state charges as a “loophole” I do not believe that would have worked. He was a sitting President. In those instances, at the time of the alleged offense conduct he was still the President, and unlike the July 2020, U.S. Supreme Court decision, I believe Presidential immunity would apply in those instances. Typically those types of state charges are usually referred to the U.S. Attorney’s Office due to personal and subject matter jurisdictional issues. As a result, it could be argued that those should be federal charges, so the pardon protects him.
While the 2009 Lardner decision resulted in all applicants for clemency being disclosed via a search option on the Office of the Pardon Attorney’s website, it does not apply to those grants of clemency issued directly from the white house. He would not have to announce it, but given his history I believe that he would want people to know as a final gesture of the legacy of his Presidency. Any future President could still do this, in my opinion.
IT’S THE INJUSTICE FOR ME: CLEMENCY REFORM ADVOCATE
As a Clemency Reform Advocate, the Constitutional Pardon Powers require an amendment and the Office of the Pardon Attorney’s evaluation and recommendation
process also requires review. At this last stage of the criminal justice system race, gender, and age biases; as well as the cultural significance of geographical and socio-economic status must be taken into consideration in the evaluation process in an equitable way that will increase favorable recommendations that ultimately may increase the amount of underrepresented groups receiving this extraordinary grant of forgiveness.
Clemency should not be relied on by any President to right the wrongs of Congress either. Whether it’s the decision to end federal parole for federal convictions after November 1987, ending funding to the Bureau of Alcohol, Tobacco, and Firearms and Explosives' gun restoration program in 1992, and the retroactive sentencing guidelines of 2014, individuals with federal convictions have nowhere else to turn, but to the Office of the Pardon Attorney’s small staff and extremely limited budget to take on those matters in which the office was never designed to do. With the new administration’s responsibility for draconian drug laws, it is inevitable that the Office of the Pardon Attorney will be forced to assess the matters that are not entirely clemency related. Coupled with an already biased evaluation process, overworked, and underpaid staff, the Office of the Pardon Attorney is no longer operating the way it was intended.