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Selling pardons

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The almost completely unlimited presidential pardon power is the type of anachronism that is going to exist in a nearly 250-year-old constitution that is nearly impossible to amend. It’s the kind of power where normative constraints are important. The pardon power has been abused by previous presidents, needless to say, but as Austin Sarat points out Trump’s explicit quid pro quos to buy votes and remove consequences for active collaborators in his attempted autogolpe are taking things to another level:

The president’s ability to grant pardons and commute sentences is a dramatic but generally quiet power. Presidential grants of clemency generally go through a complex bureaucratic process. They are not usually announced in advance, let alone deployed as part of a campaign to win votes.

But, as with many other things, Donald Trump is changing all that. He has made promising pardons an important part of his 2024 campaign.

This is a bad development in our scheme of constitutional government, a tactic that taints one of the most awesome of presidential prerogatives. Trump is turning clemency from a solemn responsibility to just another tool in his transactional political repertoire.

On Saturday, in an appearance at the Libertarian Party Convention, Trump gave us another example of the lengths to which he will go just to win a few votes. There he offered a clemency quid pro quo.

“If you vote for me,” he promised, “on Day 1, I will commute the sentence of Ross Ulbricht to a sentence of time served. He’s already served 11 years. We’re going to get him home.”

[…]

As NPR noted in January, “Trump has said he would issue those pardons on ‘Day 1’ of his presidency, as part of a broader agenda to use presidential power to exact ‘retribution’ against his opponents and deliver ‘justice’ for his supporters. ‘We’ll be looking very, very seriously at full pardons,’ Trump told an interviewer in 2022. ‘I mean full pardons with an apology to many.’ ”

[…]

And, when he was president, Trump associates allegedly said that he would grant pardons in return for cash payments. They supposedly told people seeking such favors not to go “through ‘the normal channels’ of the Office of the Pardon Attorney, because correspondence going to that office would be subject to disclosure under the Freedom of Information Act.”

Trump also used his clemency power to reward his cronies and loyalists. He pardoned or commuted the sentences of people like Steve Bannon, Michael Flynn, Roger Stone, and Paul Manafort. As Politico put it in a January 2021 overview of Trump’s grants of clemency, “The degree of Trump’s politicization of the process was staggering.”

We shouldn’t be surprised that he would continue down that path in 2024. Still, as the New Republic’s Michael Tomasky puts it, “A president selling pardons”—or using them to get votes—“is morally and ethically right up there with the Catholic Church selling indulgences, a practice that has gone down rather poorly in history.”

As bad as the first Trump term was, a second would be much worse.

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