A flurry of them has been expected, and just prior to Christmas, US President Donald Trump waved his wand of pardon with vigour. On December 22, the president issued fifteen pardons and five commutations. The choices so far have been, to put it mildly, problematic.<\/p>\n
The power to pardon can be found in Article II, Section 2, Clause 1<\/a> of the US Constitution, a provision which states, in part, that the President \u201cshall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.\u201d That most eminent of judicial heads Chief Justice Marshall described<\/a> a pardon as \u201can act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.\u201d<\/p>\n Those of curious legal mind will detect the residue of the monarchical prerogative<\/a> in all of this. The great synthesising authority of English law, William Blackstone, praised<\/a> the monarchy for having a distinct advantage: \u201cthere is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment.\u201d Justifying the mirroring of this power in the US Constitution, Alexander Hamilton\u2019s Federalist 74<\/a> argues that, \u201cHumanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.\u201d<\/p>\n The Supreme Court has not been blind to the potential abuse of the power, noting in the prohibition case of Ex Parte Grossman<\/a><\/em> that exercising it \u201cto the extent of destroying the deterrent effect of judicial punishment would be to pervert it.\u201d But Chief Justice William Howard Taft, having himself been a president, thought it unseemly to limit the presidential prerogative. \u201cOur Constitution confers this discretion on the highest officer in the Nation in confidence that he will not abuse it.\u201d<\/p>\n The quality of mercy in Trump\u2019s decisions has been peculiar and personal. Jack Goldsmith and Matt Gluck go so far as to claim<\/a> that \u201cno president in American history comes close to matching Trump\u2019s systematically self-serving use of the pardon power.\u201d In doing so, the president has also managed to circumvent<\/a> the 125-year-old Justice Department office of the Pardon Attorney. The pardon attorney acts as sage and counsel in preparing a recommendation on the particular pardon or commutation, conveyed through the Deputy Attorney General. By July 2020, Trump had made 29 of his 34 pardons without the tempering involvement of the pardon attorney.<\/p>\n Consistent to form, his latest round<\/a> is heavy with the personal. There is Alex van der Zwaan, who was charged with one count of making false statements in connection with the investigation of Special Counsel Robert Mueller on possible Russian interference in the 2016 election. There is George Papadopoulos, also of false statement fame in connection to the Mueller investigation. \u201cNotably,\u201d goes the White House statement<\/a>, \u201cMueller stated in his report that he found no evidence of collusion in connection with Russia\u2019s attempts to interfere in the election. Nonetheless, the Special Counsel\u2019s team still charged Mr Papadopoulos with the process-related crime.\u201d<\/p>\n Former Republican lawmakers Chris Collins and Duncan Hunter could also count themselves fortunate. Collins, a firm backer of Trump, pleaded guilty<\/a> in 2019 to insider trading and was serving a 26-month prison sentence. Such an offence was never going to trouble Trump too much. More interesting was his \u201cparticular focus on the wellbeing of small businesses, agriculture, and sciences.\u201d For his part, Hunter was found guilty of one count of misusing campaign funds. This \u201ccould have been handled as a civil case via the Federal Election Commission, according to former FEC Commissioner Bradley Smith.\u201d<\/p>\n By any moral or ethical stretch of the imagination, the most execrable use of the pardon power would have to be those issued for the four security guards of the private military firm Blackwater, convicted for the killing of 14 Iraqi civilians in 2007. The butchering took place at Baghdad\u2019s Nisour Square, when the contractors deployed sniper fire, machine guns and grenade launchers at a busy traffic circle. The justification by Nicholas Slatten, Paul Slough, Evan Liberty, and Dustin Heard was crudely predictable: they opened fire only after being ambushed by Iraqi insurgents. The slain and injured women and children, some with hands in the air as they fled the scene, suggested a different account.<\/p>\n Rather banally, the White House statement<\/a> praises their record: they were inspired to serve their country; they did so in various capacities in Iraq. As security contractors tasked with protecting US personnel, they were merely responsible for \u201cthe unfortunate deaths and injuries of Iraqi civilians.\u201d The reputation of the lead Iraqi investigator is also impugned, as he \u201cmay have had ties to insurgent groups himself.\u201d<\/p>\n The murderous feats of the four did much to point a finger at how the military security complex had been outsourced to private security firms more concerned with pay packages than the enfeebling irritations of international law. Their convictions were considered<\/a> by Paul Dickinson, a legal representative for the Nisour Square families \u201csignificant\u201d for showing \u201cthat paramilitary contractors who commit crimes abroad can be held accountable for their criminal actions.\u201d<\/p>\n But the lobbyists had been busy bringing out the white wash, making the point that the four were sacrificial lambs for appeasement. A website<\/a> dedicated to defending their cause dubbed them \u201cThe Biden Four,\u201d who \u201cwere sacrificed for politics and convicted by lies.\u201d Brian Heberlig, lawyer for Slough, was convinced<\/a> by his brief. \u201cPaul Slough and his colleagues didn\u2019t deserve to spend one minute in prison.\u201d Heard\u2019s attorney, David Schertler, babbled<\/a> on about honour and his client\u2019s \u201cwell-deserved freedom.\u201d<\/p>\n Such softening in the rigour of the general law seemed like a grand reversal in jurisprudence. Hina Shamsi of the American Civil Liberties Union was quick off the mark<\/a> in condemning the pardons. The actions of these men had \u201ccaused devastation in Iraq, shame and horror in the United States, and a worldwide scandal.\u201d As if it were possible, the office of the president had been further degraded.<\/p>\n