The Presidential Pardon: Executive Privilege in Terms of Democratic Norms and Political Incentives by Matt Willis
The following is a response to “The Impact of Presidential Pardoning on American Democracy” by Felicia Gordon.
The language of Article II, Section 2 of the United States Constitution is very interesting in that it grants the executive the right “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The author of the original post was agreeable in saying that this clause is quite vague, in a potentially dangerous way. With some aspects of this clause clarified only by informal precedent, there is some theoretical cause for concern. But although the language of the Constitution may leave something to be desired, one must not ignore the role of institutional procedure and democratic norms in providing incentives for good behavior.
It might be said that one of the first significant exercises of the presidential pardon involved two men who were involved with the Whiskey Rebellion during the Washington administration. In an article for Presidential Studies Quarterly, Jeffrey Crouch wrote that George Washington pardoned John Mitchell and Philip Vigol, who had been sentenced to death, due to his belief that the matter was closed and that the public would not be further deterred by their punishment. Washington is remembered to this day for delineating the role of the President as a symbol of moderation and humility in governance. He wanted the executive to be morally distinct from the monarchs of the age, a figure who could personally offer mercy to individuals who he knew not to pose an ongoing threat to society.
The clemency granted upon Richard Nixon often comes to mind when pardoning is discussed in more modern terms. After the American public had been made aware of the crooked dealings involved in Nixon’s reelection campaign, he resigned to avoid a likely conviction by the House. As President, Gerald Ford granted reprieve for any crimes Nixon may have committed while in office. Ford’s motivations might seem somewhat innocent, perhaps even Washingtonian in nature. He was expressing sympathy for Nixon, who felt he had done no wrong. The issue with Ford’s actions is that his personal loyalty to Nixon was not only evasive of legal procedures, but also non-reciprocal. In a key move designed to salvage his own reputation, Nixon refused to sign a formal statement retroactively admitting to his wrongdoings – again, he continued to claim that there were none.
The acceptance of a pardon may be an admission of guilt, but Nixon was able to deflect the weight of this guilt onto President Ford. After all, the pardon was identified as an extremely costly move, with Republicans losing dozens of congressional seats in the following election and Ford himself being defeated for the presidency in 1976. His treatment of the Nixon case helped to erode what little mandate he had still possessed. If Washington’s use of the presidential pardon was a noble and gracious act, Gerald Ford’s use might represent quite the opposite.
In “The Perils of Presidentialism,” an essay by Juan Linz published in the Journal of Democracy, he describes a paradox in the fundamental principles of the executive branch. The President is meant to be a strong executive figure who has certain privileges to ensure an outcome when the situation calls for one. At the same time, however, his power is derived from the will of the people, and he should be responsive to them. Do the institutions established under the United States Constitution do enough to keep a President in check when he misuses these special privileges? In a technical sense, the author of the original post argues, they do not.
It is agreeable and natural that the extent to which the executive is able to take liberties in the decision-making process is cause for concern. Certainly this is where basic democratic norms enter the scene as a companion to written statute. Also in the Journal of Democracy, Philippe Schmitter and Terry Karl make sure to note that “democracies are not likely to appear more orderly, consensual, stable, or governable than the autocracies they replace.” They further explain that democracy, such as is practiced in the United States, only functions as long as outside parties, groups, and individuals “are willing, however reluctantly, to play by the rules of bounded uncertainty and contingent consent.” Constitutional attitudes are accompanied by normative ones, and any executive has the capacity to override some of these attitudes and disrupt the order. Thus, political scientists fear the current populist trend, since candidates from outside the establishment are either unfamiliar with the unwritten norms, or simply do not see a place for them. However, as is seen in the case of Richard Nixon and Gerald Ford, impropriety can have both institutional and normative consequences for the guilty party.
The post to which this is a response briefly mentions the outstanding allegations against the Trump administration concerning collusion with Russia, and it may help to briefly relate his situation to the issue of presidential pardons. As a political outsider, Trump may be frustrated by the fact that he cannot do anything to instantly dispel the accusations against him. He has taken a political step by replacing Jeff Sessions as United States Attorney General with William Barr, who has been critical of the special counsel appointed in the case. Given the loose wording of Article II, Section 2 of the Constitution, and given the precedent of a high-ranking official being granted reprieve from crimes of which they have not even been found guilty, one could see how Trump has technical options to alleviate his burden. One might also see, however, how there are enough incentives at work and enough powerful institutions surrounding the executive to promote a fair investigation. Simply put, Donald Trump still has an election campaign to run, and history shows how expediency and impropriety can affect political prospects.
The author of the original post suggested that the intervention of the Supreme Court in case of such expediency could potentially be a boon against authoritarianism, and this is absolutely correct. The purpose of this response was to address how the current state of American institutions and norms provide ample incentive to respect the processes in place, before the issue even lands in the courts. Purpose notwithstanding, it would also be fair to note certain potential concerns with this argument. First, Trump has seen relatively little backlash from his use of presidential pardoning powers to grant reprieve to political supporters, the most prominent case being Joe Arpaio. Arpaio is a former law enforcement official dubbed “America’s toughest sheriff,” and has been accused of mistreatment along racial lines. He himself has affectionately described an outdoor detention complex outside Phoenix as a “concentration camp.” As Trump is still in his first term, the public is officially undecided on how the endorsement of Arpaio looks for him as a president. The other issue concerns his recent declaration of an immigration-related emergency, and the attitudes of the courts surrounding this. Emergency declarations are not particularly unusual, but this will be an interesting display of how a political outsider wields his broadly-defined powers. For now, however, one might be inclined to believe that the influence of party leaders and basic norms will prevent a major threat.
*Photo from Gerald R. Ford Presidential Library, “President Ford announces his decision to pardon former President Richard Nixon, public domain, obtained from Wikimedia Commons.