Trump’s extraordinary pardon binge MAGAifies the clemency power

He isn't the first to abuse the pardon power, but that's no reason not to reform it.

Throughout history, clemency and corruption have gone hand in hand. From the 11th century, when the Catholic Church began granting indulgences, which promised to reduce or eliminate punishment for sin, to former President Joe Biden’s pardoning of his son and other family members as his term came to an end, a hint of scandal has hung over the clemency power.

Here and elsewhere, powerful people have granted clemency for political loyalty or other reasons. Rewarding such loyalty has become a staple of what President Donald Trump has done with his power to grant pardons and reprieves since he returned to office.

This past week has offered a startling demonstration of that fact.

The president, who began his term by granting a blanket clemency to people convicted of crimes for their role in the Jan. 6, 2021, insurrection, has doubled down on his determination to use the clemency power as a weapon and a reward. And, as he granted new pardons and commutations to a slew of ne’er-do-wells, CNN noted, “it’s virtually impossible to miss the political overtones.”

“Many of Trump’s acts of clemency,” CNN continued, “have rewarded an ally or someone tied to an ally, or they have served a clear and not terribly subtle political purpose.” Ed Martin, Trump’s newly appointed pardon attorney, made that very clear on May 26 when he explained that the administration’s pardon philosophy is guided by a simple maxim: “No MAGA left behind.”

Americans should not tolerate this extreme politicization of clemency. It is time to reform this power in ways that discourage misuses and make the process more transparent

Before looking at what Trump did over the past week and at possible changes, let me say something about the clemency power and some of its most notorious uses.

The power of presidents and governors to grant commutations and pardons has been controversial right from the start of the American republic. Take, for example, the first use of the clemency power—by George Washington.

In 1795, when the new president pardoned John Mitchell and Philip Weigel, who had been convicted of treason for their participation in the Whiskey Rebellion, a violent, anti-tax movement, he said: “(Ci)rcumstances have induced me … to extend forgiveness to those, who had been adjudged to capital punishment” and, Washington added, “consistent with the public good … to mingle in the operations of Government every degree of moderation and tenderness, which the national justice, dignity, and safety may permit.”

Eloquent as Washington was, his longtime ally Alexander Hamilton was not persuaded. He advocated “vigorous & decisive measures” to put down the Whiskey Rebellion and counselled Washington “to exert the full force of the Law against the Offenders.”

More than 30 years later, President Andrew Jackson pardoned George Wilson, who was convicted of robbing mail trains and “putting the life of the driver in jeopardy.” Wilson was sentenced to death.

Before his sentence could be carried out, some powerful and well-connected friends asked Jackson to pardon Wilson. Jackson obliged, though in a strange and unusual twist, Wilson betrayed his friends and refused the product of their influence peddling.

Fast forward to 1953. In the waning days of his presidency, Harry Truman went on his own pardon binge, granting “twenty-six pardons and two commutations of sentence….” In seven of the pardon cases, the New York Times reported, “President Truman acted without receiving any recommendation for clemency from the Department of Justice's pardon attorney.”

Many of Truman’s clemencies went to politically connected convicts and cronies. They were so scandalous that he kept them secret, a practice quickly reversed by the Eisenhauer administration.

Add to this President George H.W. Bush’s 1992 pardon of Caspar Weinberger, the former secretary of Defense, and five others, who committed crimes in the Reagan-era Iran-Contra scandal. And President Bill Clinton’s pardon of his brother, Roger, who had gone to a jail on drug charges, and of Marc Rich after his wife made a substantial donation to the Clinton Foundation. The list goes on and on.

We can’t forget governors. They have their own rogues gallery of people who abused their clemency power, including former Tennessee Gov. Roy Blanton.

Blanton was “removed from office in January of 1979, two days after he granted executive clemency to 52 convicted felons and a month after the FBI arrested his legal counsel and the state's chief extraditions officer on racketeering charges. They were accused of arranging to reduce convicts' sentences for cash payoffs.”

That brings us back to the president and Ed Martin.

As CNN noted, Martin posted his maxim after the president pardoned a “MAGA-supporting” and prominent Second Amendment defender, former Virginia Sheriff Scott Jenkins. Jenkins had been convicted of bribery.

But Jenkins was just one of a long list of this week’s recipients of presidential mercy who have a record of standing up for MAGA causes.

Others include Mark Bashaw, an officer who formerly served at the Army Public Health Center and was convicted by a special court-martial of “violating lawful orders to comply with COVID-19 mitigation measures.” The president also commuted the sentence of Imaad Zuberi, “an American venture capitalist who donated $900,000 to Trump’s first inaugural committee” and who “was sentenced in 2021 to 12 years in prison for falsifying records to conceal his work as a foreign agent while lobbying high-level US government officials and obstructing a federal investigation involving the inaugural fund,” as CNN reported.

Also on the list were long-time MAGA loyalist, and former Rep. Michael Grimm, who went to prison for felony tax evasion, and Paul Walczak, who was also convicted on tax-related charges. His pardon came three weeks after his mother attended a $1 million-per-person fundraiser with Trump at his Florida home. Let me be clear. I am not saying that there was a quid pro quo in any of the president’s recent clemencies.

He has wide discretion to commute and pardon as he wishes.

But the American people are not powerless to react as we wish. There are things that can be done, and the range of reform possibilities is great.

In January, Rep. Steve Cohen (D-Tenn.) introduced a constitutional amendment that would “prohibit a self-pardon, pardons of family members, administration officials, and campaign employees. It would also bar the President from issuing pardons to those whose crimes were committed to further a direct and significant personal interest of the President or others close to the President, and those whose crimes were committed at the direction of, or in coordination with, the President. Finally, the amendment also clarifies that no pardon issued for a corrupt purpose—past, present, or future—is valid.”

Other reforms, as the Brennan Center’s Caroline Fredrickson observed, would “require the Justice Department and the president to provide Congress materials pertaining to a pardoned individual’s prosecution and pardon” or “require the president to publish the issue date, recipient, and full text of each pardon or reprieve.”

Finally, Fredrickson argued, Congress can help police the pardon power through its “oversight and investigative powers.”

Though the immediate prospects for action on any of these ideas are not great, it is time to recognize that this country is not well served when clemency is turned into a political weapon or a political reward—whether by Andrew Jackson, Harry Truman, Bill Clinton, or Donald Trump.

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.

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