Trump, justice, and (what used to be) the American way

Prior to the Senate acquittal, there were rumblings that Trump might one day pardon his convicted buddies in the twilight of his presidency—not unlike presidents before him, who used such controversial maneuvers sparingly and saved them for when they were almost out the White House door. After today, though, the pardon power will operate as an openly political tool for presidents to dangle and use during their terms for purposes of shaping and motivating political loyalty.

Keep in mind that the pardon power was meant to function as a mechanism for mercy and justice—a check on the potential excesses of a federal judiciary whose judges serve for life. Alexander Hamilton explained in Federalist No. 74 that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

To be sure, the Constitution gives presidents “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” But in 1974, the Supreme Court in Schick v. Reed underscored that “considerations of public policy and humanitarian impulses support an interpretation of that power . . . which does not otherwise offend the Constitution.”