What's Tony Thinking

Presidential Pardons

Lots of discussion and speculation going on at present about President Trump’s use of the presidential pardon power now that he is in the final month of his term in office. Will he pardon family members? Will he try to pardon himself?

So far Trump has pardoned, according to my count, 30 people. The latest being Michael Flynn, the onetime National Security Advisor, who is currently advocating for a declaration of martial law and a new election conducted by the U.S. military.

Some of the other recipients of pardons so far include Roger Stone (Trump political crony), Michael Milken (junk bond king), Dinesh D’Souza (conservative journalist and political operative) and Joe Arapaio (Arizona sheriff).

There has been talk that Trump may pardon his offspring, Don Jr., Eric, Ivanka and her husband, Jared Kusher.

Recently I listened to a tape of an interview done with Gerald Ford, several years before Ford’s death. The topic was his pardon of Richard Nixon — arguably the most famous and controversial presidential pardon of them all. Ford took a lot of heat for it. Now, that decision seems to be generally regarded as a wise move, one that allowed the country to move on.

But in listening to that interview I learned a couple things I did not know about presidential pardons, and which we may want to bear in mind in the coming weeks.

According to a 1915 Supreme Court case, Burdick v. United States, acceptance of a pardon is an implicit acknowledgement of guilt. In other words, a pardon doesn’t just clear the record with no resolution. It implies guilt. Here’s the language of the Burdick case.

According to Associate Justice Joseph McKenna, writing the majority opinion in the U.S. Supreme Court case Burdick v. United States, a pardon “carries an imputation of guilt; acceptance a confession of it.”

Apparently, this case was so important to Gerald Ford that he carried a copy of the Burdick decision in his wallet for the rest of life.

I also learned that a pardon recipient may decline a presidential pardon, as some have done in order to fight the charges in court in an effort to clear their name. And, conversely, that a pardon recipient must, in order to be pardoned, act affirmatively to accept a pardon once offered.

One other fact of interest: the President who exercised the pardon most most was Franklin Delano Roosevelt. Of course FDR was in office a longer time than any other president, from 1933 to 1945.

I don’t imagine that the power of presidential pardon was originally intended as a way of bailing out a President’s criminal cronies or rewarding big donors who ran afoul of the law. I suspect it was intended to pardon a person who had done something wrong, but whose other forms of service and sacrifice outweighed a failure. Or that it was intended as in the Ford/ Nixon case as a way of sparing the nation further trauma or division.

How Trump will use the presidential pardon in the waning weeks remains to be seen. But it may be important to bear in mind that acceptance of a pardon “carries an imputation of guilt; acceptance a confession of it.” I doubt that Trump will get that, nor will he communicate it, but it remains the case.

It may be a “Get Out of Jail Free” card to recall the game of “Monopoly,” but it’s not getting off scot-free.

All this to say that a Presidential Pardon is, at least in theory, not about exoneration but forgiveness.