Editor’s Note: Thomas Balcerski teaches history at Eastern Connecticut State University. He is the author of “Bosom Friends: The Intimate World of James Buchanan and William Rufus King” (Oxford University Press). He tweets @tbalcerski. The opinions expressed in this commentary are his own. View more opinion at CNN.
Last week, President Donald Trump announced three major pardons – two traditional pardons for two turkeys named Corn and Cob on Tuesday and a controversial pardon of his former national security adviser Michael Flynn on Wednesday. For a President still hotly railing against the results of the presidential election, the Thanksgiving turkey pardons struck a strangely conventional note. By contrast, the executive clemency bestowed upon Flynn, who, after all, pleaded guilty to lying to the FBI, may bode a potentially erratic course ahead for this lame-duck administration.
To date, Trump has issued just 29 total pardons, fewer than any other presidential term in modern history. George H.W. Bush, the previous one-term record holder for fewest pardons, granted 74.
That pattern may change soon. As the end of his presidency approaches, pardon season is officially upon us. Perhaps most worrisome, speculation has run rampant that Trump may even try to pardon himself (something he likely can’t do.)
Since the turn of the 20th century, presidents have granted more than 21,000 pardons and commutations of sentences. More good than bad, presidential pardons have the power to undo past injustice and clear the name of those who were unfairly prosecuted for federal crimes (state-level offenses are tried separately). Overall, good pardons quell rough political waters and correct previous wrongdoings, while bad pardons diminish the prestige of the presidency and undermine the strength of American democracy.
As Trump prepares to leave office, his pardon power may well be a defining part of his legacy. Rather than merely serving partisan ends, he can and should use the pardon power for good. By doing so, he can help to unify the country after this year’s contentious presidential election.
Let’s start with the positive examples of pardons and commutations.
President Warren Harding
In 1921, President Warren Harding commuted the prison sentence of Eugene V. Debs, a perennial presidential candidate for the Socialist Party. He had been arrested in 1918 after delivering a speech in Canton, Ohio, that encouraged resistance to American involvement in World War I. He was sentenced to 10 years in prison for violating the Espionage and Sedition Acts of 1917 and deprived of his citizenship rights, including the ability to vote. Incredibly, Debs received nearly 1 million votes for president in 1920, even though he was still imprisoned.
Although Harding did not give a full pardon to Debs, the decision to commute the sentence helped the country to move beyond politically divisive rhetoric. Harding ably justified his decision in a letter to his close friend Malcolm Jennings: “I thought the spirit of clemency was quite in harmony with the things we were trying to do in Washington; that Debs had never been guilty of any overt act; that he never countenanced destruction of government by force, and probably I could persuade him to become a factor in contributing to tranquility throughout the land.”
Even as criticism surfaced from both the right and the left, the move safeguarded freedom of speech across the political spectrum. “We cannot punish men in America for the exercise of their freedom in political and religious belief,” Harding said.
Debs’ legacy lived on. In July 1976, Congress voted to restore posthumously his rights of citizenship. Debs remains a hero to many on the left, including Vermont Sen. Bernie Sanders, who made a documentary about him in 1979.
President Jimmy Carter
In 1977, President Jimmy Carter offered pardons to the tens of thousands of young men who had resisted the draft. Set against the aftermath of the Vietnam War, Carter ordered Proclamation 4483 for those men who had resisted the Military Selective Service Act between 1964 and 1973. The proclamation encouraged as many as 100,000 Americans who had fled the country, primarily to Canada, to return home. By affording widespread amnesty, Carter hoped to provide much needed reconciliation for a divided country.
Widespread anti-war protests had rocked the nation, including the killing of four university students at Kent State in 1970. And while President Gerald Ford had begun the process of reconciliation in 1974 by offering partial amnesty to draft resisters who performed public service, two years later, the question of full amnesty hinged on the outcome of the presidential election.
While Carter had made widespread amnesty a campaign promise, the backlash against the order was swift. Arizona Sen. Barry Goldwater called it the “most disgraceful thing that a president has ever done.” Similarly, veterans’ organizations opposed the move.
In the end, many American ex-pats chose to stay in Canada. Nevertheless, Carter’s sweeping offer of pardons represented the essential humanity of a President who wanted to heal the country after a long and grueling war. Historians now look back on the decision as a defining moment of Carter’s presidency.
By contrast, these presidential pardons stirred further division and hurt the country in the long run.
President Gerald Ford
On September 8, 1974, President Gerald Ford pardoned former President Richard Nixon for any crimes that he may have committed as part of the Watergate scandal. The announcement came on the heels of Ford’s inaugural remarks of in August 1974, in which he declared the country’s “long national nightmare” to be over.
The Nixon pardon shocked the nation, and the public outcry was palpable. Most Americans polled on the subject wanted Nixon to be punished. At the very least, they wanted the judicial process to run its course. Some in Congress also decried that a deal had been cut between Nixon and Ford, though historians generally doubt this view.
While it tore apart his administration, Ford maintained that pardoning Nixon was the right thing to do for the nation. In time, the view became more widely accepted, with even Democratic Sen. Ted Kennedy of Massachusetts expressing his support of the decision.
But Ford also set a very troubling precedent. By not prosecuting the crimes of a public leader, a certain degree of accountability was lost and democracy itself weakened. Ford’s pardon of Nixon remains the only such exoneration of a former President of the United States.
President Bill Clinton
On January 20, 2001, President Bill Clinton pardoned Marc Rich, a political supporter and financial backer. Rich, who had been indicted for tax evasion and wire fraud, among other charges, had been a target of federal investigation since the early 1980s. At one point, he stood at No. 6 on the most wanted list of fugitives. By issuing the pardon, Rich, who lived in exile in Switzerland, was cleared to return to the United States.
The pardon proved so controversial – the New York Times editorial board declared it “indefensible” – that Clinton penned an op-ed defending his actions. For their part, Republicans initiated a congressional investigation, with Sen. Arlen Specter of Pennsylvania even moving to enact a constitutional amendment to allow Congress to overturn presidential pardons. Congressional efforts went nowhere, however.
The Rich pardon remains a hot-button topic, as evidenced by new information surfacing during the 2016 presidential campaign. Though containing heavily redacted information, the FBI report released that year reminded voters of the shameful episode from Clinton’s time in office. Clinton’s defense notwithstanding, it may well be the worst pardon given by a president in the 21st century and has forever stained his legacy.
The history of pardons and commutations reveals the broad powers granted to the president under Article II of the Constitution. The power to transform a person’s life should be a cherished part of American democracy. However, presidential pardons do not always serve the best interests of the people, even when presidents intend to do so. Whether Trump will act for the good of the American people – and not just in self-interest – will be a closely watched aspect of his lame-duck presidency.