A Season of Pardons

Image by Narcis Ciocan from Pixabay

A Season of Pardons

By Joel Levin

This is the Season of Pardons, the time at the end of the term of an executive, governor, or President, when for reasons no one seems to know, it is safe or appropriate or reasonable or prudent, or just plain a good idea, suddenly to pardon people or to commute their sentences, people who in some cases deserve pardons or commutations when the executive first assumed office, not as he or she was leaving it. President Trump‘s pardon holiday, with its plethora of pardons that serve his own self-interest, spite his enemies and reward his friends, or otherwise protect his present and future political and financial prospects, seem particularly odious. They have drawn widespread criticism about the pardon process from the chattering class of legal analysts and other professionals. That class likes to emphasize what they take to be an important discovery: that those seeking pardons are criminals, and what they did, even more shockingly, was to engage in criminal misconduct. There is sanctimonious sighing about letting miscreants out on the streets, even praising our schizophrenic or bipolar legal system, which allows prosecutors to charge twice for the same act, once in a state court and the other in federal, what anyone untainted by a mediocre legal education might well consider to be double jeopardy, suggesting it potentially allows a remedy for the harm done by errant pardons. Mainly, though, the emphasis is on the undeserving nature of those seeking the pardons. I want to emphasize here the complexity of the justification for pardons, and suggest that there are at least three very different kinds of reasons that weigh in favor of pardons, and only one of those three is much concerned with the wrong-doer. First, though, it might be worth taking a look at one of those odd, serendipitous coincidences that arises occasionally to add spice to our political history.

In this, his final week in office, Attorney General William Barr announced renewed interest in, and indictments against, those who participated in the horrendous Lockerbie Bombing, the 1988 downing of Pan Am Flight 103. That bombing killed 259 people in the air and another 11 on the ground in Lockerbie, Scotland. Originally tried in the Netherlands in order to have a more neutral venue, the man charged with planting the bomb, Abdelbasit Ali Mohamed Al-Megrahi, was convicted and sentenced to serve life in prison for 270 counts of murder in a Scottish prison. Following two appeals and 8 years in prison, he was diagnosed with terminal prostate cancer and petitioned for compassionate release, in essence a commutation of his sentence for mass murder. Under the Scottish legal system, it was left to the Scottish Justice Secretary, at that time Kenny MacAskill, to make the decision.

Mr. Al-Megrahi was certainly an unattractive candidate for release. Under any system of proportional punishment – that is, one where lesser crimes and less malign intent (mens rea in legal jargon) would lead to shorter sentences, while greater or more serious crimes, with more victims and more malicious intent, would lead to longer and graver sentences – Al-Megrahi may well have been thought to be deserving of life imprisonment for the taking of even a single life, let alone 270. Moreover, there was neither any expression of regret nor other mitigating factors in his favor for his conduct (there was later some criticism of the reliability of certain pieces of evidence, but that is hardly unusual in most death sentence cases on the one hand, while on the other, it played no part one way or another in the pardon considerations). That is, the sentence did not seem particularly onerous, the prisoner did not seem particularly deserving, the process not particularly tainted, and the general reasons for severely discouraging such a crime were as strong as they could possibly be. Moreover, he had served but a small part of his given sentence. It is true that he had only a few months to live (although, in fact, he survived almost another three years, if some of it comatose and on an intravenous drip), but if one is serious about handing out life sentences, one ought to become used to the fact that end-of-life considerations brought on by a variety of health conditions and diseases would frequently incapacitate and hospitalize long-term inmates in their last days. If pardons are about what the prisoner deserves, Al-Megrahi would hardly qualify as a likely candidate. Yet he was released, for reasons set forth very clearly by the Scottish Justice Secretary, Mr. MacAskill:

“In Scotland, we are people who pride ourselves on our humanity. It is viewed as a defining characteristic of Scotland and the Scottish people. The perpetration of an atrocity and outrage cannot and should not be a basis for losing sight of who we are, the values we seek to uphold, and the faith and beliefs by which we seek to live. Mr. Al-Megrahi did not show his victims any comfort or compassion. They were not allowed to return to the bosom of their families to see out their lives, let alone their dying days. No compassion was shown by him to them. But, that alone is not a reason for us to deny compassion to him and his family in his final days. . . . Compassion and mercy are about upholding the beliefs that we seek to live by, remaining true to our values as a people. No matter the severity of the provocation or the atrocity perpetrated.”

If Attorney General Barr in his announcement was implicitly contemptuous of any mercy toward those who perpetuated the Lockerbie atrocity – “We have to show that if you commit this kind of terrorist act, you’re going to pay a big price” – he was in distinguished company, although company that Barr may well find uncomfortable and impolitic. Upon the pardon announcement by MacAskill, the then Director of the FBI wrote him a furious letter. 

“Your action in releasing Megrahi is as inexplicable as it is detrimental to the cause of justice. Indeed your action makes a mockery of the rule of law. Your action gives comfort to terrorists around the world who now believe that regardless of the quality of the investigation, conviction by jury after the defendant is given all due process and sentence appropriate to the crime, the terrorist will be freed by one man’s exercise of ‘compassion’ . . . Where, I ask, is the justice?” 

That Director was Robert Mueller, the Special Prosecutor of the Russian election interference investigation, whose efforts and report were so disparaged by Barr.

Mueller was right about one thing: pardons based on mercy need have little to do with justice, and even, occasionally, less to do with the individual making the request. They are, to use MacAskill’s reasoning, not about who he is but about who we are. But we will return to this later. First, a very different reason, one concerned about both justice and the individual under suspicion or conviction. That reason says that the accused has been given a sentence that, at least at the time of the pardon, no longer (if it ever did) makes sense. We might call this the just deserts reason.

The grounds for just deserts intervention are familiar, being traditional, ethical, and widespread. The initial sentence may have been too harsh or harsh under the circumstances, the criminal conduct may no longer be considered as pernicious or punishment as appropriate as either once was (one might think of prohibition or drug offenses or the punishment for homosexuality), the accused has turned his or her life around or done deeds that show remorse, charity, restitution, bravery, or other praiseworthy qualities, the accused has suffered physical or mental health decline, or the original process that led to a conviction was tainted or flawed or otherwise sufficiently problematic as to throw in doubt the propriety of the conviction found or the sentence imposed. Simply, the desert that was given, that is what was or should have been deserved, was not the just one, even if it took some time to recognize that and the reasons for that injustice are diverse. 

None of this is generally problematic. What is problematic is why – in a system that every statistical, investigative and literature study finds to be deeply flawed, with enormous numbers of individuals serving sentences that can in no way be justified, often for convictions that also can in no way be justified – pardons are so rare, generally only granted at the very end of a term of office and then in minute numbers. Even if one just considers the barrage of anecdotal stories of those who have had imposed harsh marijuana trafficking sentences – the 35 years George Martorano served of a life sentence and the 31 years Richard DeLisi, released two weeks ago, served of a 90 year sentence, both men imprisoned because they sold marijuana, and neither men pardoned or enjoying a commutation of their sentences – the absence of pardons makes the rare grant of mercy take on an almost cruel aspect, akin to the randomness of drawing straws to see who will escape torture. 

The second large category of reasons that individuals are pardoned is political, although not political in the sense of President Trump pardoning potential fundraisers to aid future runs for the presidency or political allies in the case of such a run. It includes the political in the larger sense of protecting the polis – the Greek word for the local government that gave us the term ‘political’ – that is, protecting the civil society. It may just be that the society cannot handle the price of convicting certain individuals or sets of individuals. The precedents here are instructive. In Shays’ Rebellion in the 1780s, Daniel Shays lead a group of thousands of unpaid Revolutionary War veterans in an uprising in New England to seek satisfaction of the debts owed to them. Four thousand of those rebels were granted pardons (then called amnesty) in return for signed confessions. It may have been that Vermont would never have joined the Union and become a state, among other consequences, absent such an amnesty.

Eighty years later the rebellion was larger, involving those who supported the Confederate States of America during the Civil War. First President Lincoln and then President Andrew Johnson granted widespread pardons and amnesty to Confederate office holders and Confederate soldiers. 100 years later, pardons were given by Jimmy Carter to those who had fled conscription for the Vietnam War and gone to Canada. One can consider the pardon of Richard Nixon in the same way. Like the others, civil society was in some danger, the country was under certain kinds of threat, and seeking the normal, exact measure of justice would exacerbate those problems. The fragile Good Friday Agreement in 1998, which has remarkably brought peace and a prosperous civil society to a place that had neither, was based in part on pardoning a number of paramilitary soldiers, including murderers and terrorists, and involved the release of over 400 prisoners and amnesty for more in hiding. The consensus (although not among the victims and their families) has been that the trade of peace for pardons has been worth the price. One might generally think of truth and reconciliation commissions as doing the same thing.

This leads us to the third category, the one MacAskill proudly proclaimed and that Mueller ruthlessly disparaged: we do it because of who we are or, at least, who we want to be. Here, one might think of the capital punishment debates. We often recoil from executing the least sympathetic – mass murderers, child murderers, torturing murders, murderers for hire, perpetrators of crimes against humanity or genocide – when those executions would be, by our ordinary standards, unproblematically justifiable deaths. The hesitation is not because they are undeserving. They are, but we do it because of who we are. We do not see ourselves as executioners, either directly or by proxy. It is clear, even in this overview, brief as it is, that there are a number of excellent reasons for pardons, reasons that often may conflict with one another (pardoning Nixon would help the body politic and civil society but may send a bad lesson to other politicians), and that, at least, would operate as a useful and distinct check on any system. That is, the detractors of any given pardon raise the specter of undermining the sanctity of the rule of law and suggest that rule is endangered by a pardon. Of course, that is complete nonsense, as at a minimum, pardons are part of the rule. They may be thought of as one large rule in itself, and we have to think of any system as one that can generate error, mistakes, and bad outcomes. The legal system certainly does that, and does it often and for systematic reasons. It tends to be vindictive when problems are overstated (drugs), cruel when participants are encumbered by religious or racial or citizenship disabilities, negligent when the system is underfunded or overworked or overtaxed, and scandalous when those running the system are incompetent or corrupt or systematically indifferent or biased. All these things have, at certain times and places, occurred, and continue to occur, in the American justice system. Besides that, people simply make mistakes, whether they be judges or juries or witnesses or prosecutors. It would be a remarkable definition of justice if a result due to neglect or incompetence or bias or simply the product of an error in law or in fact is deemed to be more just unremedied than remedied.

We need, however, to be clear that pardons are a deviation from the larger rule of law and that if that rule, here the American justice system, is relatively just (as complete or even near-perfect justice is something out of reach, for too many reasons to mention, but certainly beginning with our own individual failings, fallibilities, ignorance, sloth, and myopia) or more just than self-help and judges better behaved than legislatures and executives, scrutinized evidence better judgment criteria than political opinions, then we need to ask of any pardon: why? Here, why for Trump’s pardons?

Trump’s pardons are somewhat of a mixed bag, of course, with scattered pardons over the term and dozens (so far) in his last month in office. We often don’t know the actual reasons for pardons, only what Trump has announced and, if we are skeptical, what we think the evidence may show. Moreover, a number of pardons may be for more than one reason. The landlord for my law firm was pardoned this week for his conviction for filing a false tax return 30 years ago. In the interim, he has been a paragon of charitable donations and efforts, from Doctors Without Borders to deserving local community activities. Was this the reason that he was given a pardon? Or was the reason he was pardoned that he he organized one of the major fundraising events for President Trump’s reelection at a private club in Cleveland this year? In any case, he has one thing in common with about 90% of the recipients of pardons: a clear and overt loyalty to the political cause, ideology, and person of President Trump and his administration. Democrats, Independents, traditional Republicans, and the politically indifferent are almost entirely left out of these pardons. In fact, the categories of the pardons have been fairly persuasively laid out as focusing on the following:

1) Political campaign associates  or Republican operatives – These include such well-known names as Roger Stone, Michael Flynn, and Paul Manafort, and perhaps slightly less known names as the policy advisor George Papadopoulos, the lawyer Alex van der Zwaan, the earlier pardoned Sheriff Joe Arpaio, Scooter Libby, the ideologue Dinesh D’Souza, and a trio of crooked congressmen: Hunter, Collins, and Stockman. There are others in addition.

2) Killers of foreigners – Trump has made a career of disliking, disparaging, and attacking almost all non-white foreign nationals. He pardoned four Blackwater security contractors convicted of the mass murder of 14 civilians in Nisour Square, Baghdad; 2 Border Patrol agents convicted of shooting a fleeing smuggler; and 3 members of Special Forces accused of War Crimes in Iraq. The Blackwater massacre has been compared to the Amritsar Massacre by British soldiers 80 years ago, always a horrifying comparison.

3) Family members – This includes Charles Kushner (Trump’s grandchildren’s other grandfather) so far, although almost certainly it eventually promises (and very possibly by the time this article is posted) to include President Trump’s children, his son-in-law, and perhaps himself.

According to the analysis of Harvard Law professor, Jack Goldsmith, of the then 65 recipients of Trump’s clemency or pardons as of December 22, 60 of them had a personal or political connection directly to Donald Trump. How does all this fit in to the three traditional categories above – correcting unjust deserts, guaranteeing the political integrity of civil society, demonstrating the humanity and morality of our society – when analyzing Trump pardons? The question is rhetorical, as clearly it doesn’t fit in at all. It is the rogue behavior of a rogue president, not in service to any of the traditional and justifiable reasons that one may want to use to argue for a pardon.

It is sometimes pointed out in defense of Trump’s actions that he and other presidents from time to time didn’t know better. This is a particularly pernicious argument, one all too widespread now in our political discourse. It says that one might be excused of any misconduct if it can simply be shown that the opposing side, one’s adversary, committed the same misconduct. Here, it is clearly false, as one works with great difficulty in finding in the 230 year history of America family and personally-based pardons, or such close connections between pardons and one’s own political and financial future. (It might be worth mentioning that a number of the other beneficiaries of Trump’s pardons involve near billionaires and billionaires, individuals in a position to advance Trump’s future financial or political projects). 

We repeatedly hear that the Constitution – Article II, Section 2, Clause 1 – gives plenary, virtually unlimited, pardon power to the President. True. Like all unlimited power, its abuse becomes an easy and even thoughtless matter for the aspiring autocrat. Making it harder to pardon people is the wrong answer. We should have more, not fewer. The problem is not the act, but the actor. Lord Action’s actual, typically misquoted, insight matters here. “Power tends to corrupt, absolute power corrupts absolutely”. In the future, we ought to design our rules so that tendencies to do wrong do not harden into guarantees of wrongdoing. For now, as tens of thousands (or more) suffer prison under conditions too hard, too long, too unforgiving, and too unjust, we should be reluctant to blame the pardon rather than the pardoner. As to the present Season of Pardons, Robert Mueller’s words mentioned earlier resonate: “Your action makes a mockery of the rule of law. . . . Where, I ask, is the justice?”