Editor’s Note: Bernadette Meyler is Carl and Sheila Spaeth Professor of Law and Associate Dean of Curriculum at Stanford Law School and the author of Theaters of Pardoning (forthcoming 2019, Cornell University Press) and New Directions in Law and Literature (Oxford University Press, 2017). She holds a J.D. from Stanford Law School and a Ph.D. in English from UC, Irvine. Before entering legal academia, she clerked for Judge Robert Katzmann, now Chief Judge of the United States Court of Appeals for the Second Circuit. The opinions expressed in this commentary are hers. View more opinion at CNN.
At Paul Manafort’s trial, his lawyers took the unusual step of not calling any witnesses for the defense, setting off speculation that Manafort is relying on the prospect of a presidential pardon. Friday morning, President Trump refused to address whether or not he would take such a step but he did say, “he happens to be a very good person. I think it’s very sad what they’ve done to Paul Manafort.”
President Trump’s use of the pardon power since he took office makes a pardon for Manafort, should he be convicted, quite plausible, but equally troubling. The jury has completed its second day of deliberations without a verdict in what is the first of the two trials Manafort is facing.
Unlike recent presidents, President Trump has avoided the Department of Justice’s mechanism for vetting pardons and has explicitly injected politics into the process. American history shows that political pardons aren’t necessarily a problem. But the political message sent by President Trump’s pardons is.
Many people are uncomfortable with Trump’s pardons because recent presidents have avoided such blatant politicization of the power. They have instead pardoned for reasons of fairness or because the recipient had reformed.
Moreover, the process is set up to discourage the President from pardoning for political reasons. The Office of the Pardon Attorney is a relatively neutral bureaucracy established to assist the President with the exercise of executive clemency. The Pardon Attorney and his or her staff assess the merits of individual applications and submit recommendations to the President.
During recent presidencies, the vast majority of pardons have proceeded through this route. When exceptions occurred, they occasioned public opprobrium and calls for investigation. This was the case with President Bill Clinton’s pardon of financier Marc Rich during his last hours in office.
Trump has upended the normal model. His recent pardons of Dwight and Steven Hammond, the Oregon ranchers convicted of arson for setting fires that burned more than 100 acres of federal land, was only the latest instance of his political use of the pardon power.
Last year, Trump issued a similarly controversial pardon of former Maricopa County, Arizona, Sheriff Joe Arpaio, pardoned Dinesh D’Souza for violating campaign finance law, and he has touted his ability to pardon even himself. In fact, political pardons are the only kind he has given.
In Trump’s defense, earlier presidents had forcefully deployed the political potential of the pardon power. At the very beginning of the Republic, President Washington used a combination of force and mercy to stem the Whiskey Rebellion.
Farmers in Western Pennsylvania had resisted imposition of a tax on the production of whiskey, their principal export, and their opposition turned violent. Washington, aided by Alexander Hamilton, led troops into the area in 1794. When some of the rebels were then prosecuted and sentenced to death, Washington pardoned them, proclaiming, “The misled have abandoned their errors.”
Similarly, in the aftermath of the Civil War and President Lincoln’s assassination, President Andrew Johnson pardoned many members of the former Confederacy. His eagerness to restore rights to these individuals without what many saw as sufficient concessions on the recipients’ parts led to increasing conflict with Congress. Although Congress had initially supported amnesty, it withdrew its backing in an 1870 statute, setting up the conditions for a constitutional conflict. In United States v. Klein (1871), the Supreme Court held that Congress could not restrict the scope of a presidential pardon as it had attempted to do.
Supporters of President Trump would be right to conclude that the political use of the pardon power has precedent in American history. However, close examination of this precedent reveals a gulf between Trump’s political use of pardoning and that favored by Washington and Johnson.
For those two presidents, pardoning represented a technique of transitional justice, reintegrating rebels who had fought against the federal government while acknowledging their defeat. While the Hammonds’ acts both resulted from and encouraged resistance to federal control over Western lands, Trump’s pardon signaled not the defeat of their position but the President’s willingness to cede environmental protection of federal lands.
Trump’s other pardons have similarly created political exceptions to the rule of law that support his own views rather than representing a magnanimous offer of clemency in service of collective peace.
Using the pardon power in this manner calls to mind Nazi jurist Carl Schmitt’s statement that “Sovereign is he who decides on the exception.” In other words, whoever declares that the rule of law doesn’t apply at the same time announces himself as the highest power in the state. This idea was used to justify the grant of emergency powers to the German President under Article 48 of the Weimer Constitution, enabling Hitler’s rise to power.
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While Schmitt’s writings focus less prominently on pardoning, the power to pardon, in Article 49 of the Weimer Constitution, was structurally similar to the power to declare an emergency under Article 48. Both enabled an exception from the rule of law, an exception that revealed the true location of sovereignty within the state.
By adding a pardon of Manafort to the ones he has already performed, Trump would confirm the fears of those who have been suspicious of his exercise of the pardon power. Trump has intuited the force of the pardon as exception and, in pardoning Manafort, would be using it to declare himself sovereign and his associates above the law.