The supreme court needs to put limits on Trump’s use of the pardoning power | Steven Greenhouse

7 hours ago 4

Since returning to office, Donald Trump has issued more than 1,800 pardons – to financial fraudsters, drug kingpins, January 6 insurrectionists and others. Unfortunately, Trump’s pardons don’t begin to conform with Alexander Hamilton’s high-minded vision of how presidents would use pardons.

When the US constitution was being written in 1787, Hamilton, a delegate to the constitutional convention, pushed to give presidents a broad pardoning power, saying presidents would use it with “scrupulousness and caution”. But Trump’s use of that power has been anything but scrupulous and cautious.

Trump has repeatedly granted pardons that either undermine our democracy or involve flagrant conflicts of interest, sometimes pardoning family members of people who gave him big donations. Because Trump has issued many pardons that the authors of the constitution would never have countenanced, the supreme court – for the sake of preserving our democracy and basic rules of ethics – needs to step up and place some limits on Trump’s unchecked and unprincipled use of the pardon power.

This is all the more important since the Wall Street Journal reported on Friday that Trump has repeatedly promised top administration officials pardons before he leaves office. “I’ll pardon everyone who has come within 200 feet of the Oval,” the Journal quoted him as saying, in what the White House maintained was a joke.

I realize that White House officials and many legal scholars say a president’s power to pardon is absolute and can’t be limited. But something urgently needs to be done to curb Trump’s often dangerous, often unethical use of that power. Take Trump’s pardon of more than 1,500 January 6 rioters – those pardons were an out-and-out assault against our constitution. Those insurrectionists were convicted or charged with mounting an assault against Congress not only to prevent duly elected Joe Biden from taking office but to bulldoze over the constitution’s requirements for an orderly transition of power. Of those pardoned, 175 were charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer. This was definitely not how the constitution’s framers envisioned the pardon power being used.

Many of Trump’s pardons are just plain tawdry. After Paul Walczak’s mother paid $1m to attend a Trump fundraiser, Trump pardoned Walczak, a Florida nursing home executive who had pleaded guilty to tax fraud after stealing over $10m in employee payroll taxes and using that money to buy a $2m yacht. Trump pardoned Walczak just 12 days after a judge had sentenced him to 18 months in prison – the pardon spared Walczak from ever reporting to prison and paying $4.4m in restitution.

Last October, Trump pardoned Changpeng Zhao, a crypto-billionaire who spent four months in prison after pleading guilty to charges related to money laundering. That pardon, which will likely let Binance resume operations in the US, came after Binance took big and unusual steps to boost the Trump family’s World Liberty Financial crypto company, catapulting its market value from $125m to more than $2.1bn.

Trump commuted the 15-year prison sentence of Jason Galanis, who was convicted of defrauding $80m from union pension funds and the Oglala Sioux tribe. Trump hurt union members and the tribe by wiping out the $80m in restitution that Galanis owed them. Trump did this huge favor for Galanis, a former business associate of Hunter Biden, because Galanis had testified in a House inquiry into the Biden family.

Trump also pardoned the former Honduran president Juan Orlando Hernandez, who was sentenced to 45 years in prison for helping drug traffickers move hundreds of tons of cocaine to the US. Hernandez won a pardon after he flattered Trump with a letter that addressed him as Your Excellency and said that he, like Trump, had been victimized by Biden’s prosecutors.

Trump also commuted the sentence of George Santos, the spectacularly dishonest Long Island congressman, who served just a few months of his seven-year prison sentence for defrauding donors and stealing 11 people’s identities. To explain that pardon, Trump cited Santos’s support of his agenda.

There are many more such sordid examples. Trump is using pardons not as a careful tool of mercy, but as a get-out-of-jail-free card to criminals he wants to bless for backing him, flattering him or doing favors for him.

“I think Trump has abused the pardon power to an unprecedented degree,” said Liz Oyer, who served as Joe Biden’s pardon attorney, advising him on who deserved pardons. “Trump has totally lost sight of using the pardon power in the public interest. The core rationale for pardons was to give the president a tool to make our justice system fairer by remedying injustice.”

Every American should worry about one possible outgrowth of Trump’s profligate pardon practices. As the Wall Street Journal article makes clear, many Trump subordinates and Maga faithful no doubt believe that if they violate the law by following Trump’s orders or political wishes, they won’t have to worry about being prosecuted because Trump will pardon them. That is a recipe for lawlessness and undermining civil order. Let’s not forget that Trump commuted the sentences (one for 18 years, one for 22 years) of several Proud Boys and Oath Keepers who were convicted of the serious crime of seditious conspiracy connected to January 6. Those egregious pardons will very possibly embolden other seditious conspiracies against our democracy.

It’s easy to imagine that defense secretary Pete Hegseth could be charged someday with violating federal law for ordering the military to blow up, rather than interdict, vessels believed to be carrying drugs. But Hegseth knows he hardly need worry because he can be confident that Trump will pardon him.

After Trump violated democratic norms by siccing prosecutors on James Comey, Letitia James and Mark Kelly, I worry about scenarios like this: on election day, Trump supporters – inspired by Trump’s lies about Democratic voter fraud – engage in large-scale, illegal voter intimidation in Democratic areas to help Republicans win numerous races, and then Trump pardons them afterwards. If you think that’s outlandish, don’t forget that Trump pardoned Rudy Giuliani, Trump’s adviser John Eastman, the former White House chief of staff Mark Meadows and 74 others who could face charges for seeking to overturn the 2020 election.

To protect our democracy from the most autocratic president in history, it’s time for the supreme court to move away from the notion that the president’s pardon power is plenary and the courts and Congress can’t do anything about it, no matter how much it is misused. The supreme court needs to step up when a president uses pardons in ways that threaten our constitutional order and clash with the provisions and goals of our constitution.

Some legal scholars will rush to argue: “No way, we can’t limit the president’s constitutional pardon power.” Here I respond with a warning made by several supreme court justices: the constitution is not a “suicide pact”.

After Trump was indicted on charges of plotting to overturn the 2020 election, chief justice John Roberts noted that this was one of the first-ever prosecutions of a president and that it called for a new look at immunity rules. In a truly dangerous ruling that has encouraged Trump’s lawlessness and authoritarianism, Roberts and the court’s rightwing majority issued a decision giving Trump alarmingly broad immunity from prosecution.

Trump’s unprecedented and often corrupt use of pardons calls for a new look at pardon rules, and hopefully the justices, unlike in the immunity case, will protect our democracy and the rule of law by placing limits on Trump’s use of the pardon power. (I acknowledge that this will take a little creative constitutional interpretation to help safeguard our democracy.)

The supreme court should place limits on unscrupulous Trump pardons. It should prohibit pardons to people when they (or their families or cronies) in essence give bribes to obtain pardons, perhaps in the form of a $1m ticket to a fundraiser or a $1m campaign donation. (I’d suggest prohibiting pardons to anyone who gives more than the $3,500 individual limit to candidates.) The court should also prohibit pardons to people like Changpeng Zhao, who help enrich a president and a president’s family.

If the supreme court continues to maintain that the pardon power can’t be limited, that could prove truly perilous to our democracy. It’s hard to deny that Trump’s pardons of over 1,500 insurrectionists and election deniers will embolden more insurrections and election denial that threaten our rule of law and our elections. Trump’s pardons will also encourage more criminals and their families to buy pardons that make a mockery of the rule of law.

The supreme court needs to stop turning a blind eye. It needs to step up and stop Trump from using his pardon power as a springboard for scandal and sedition.