Donald Trump's use of clemency undermines the rule of law

Wednesday brought more news of President Trump’s determination to use the powers of the presidency as inducements for people to do his bidding. WikiLeaks founder Julian Assange, who is fighting extradition from England to the United States, claims that he was offered a presidential pardon if he publicly denied that Russia hacked the Democratic National Committee during the 2016 campaign.

Assange’s claim, along with Tuesday’s grants of clemency by Trump, helps to explain the president’s special love of this unique presidential prerogative. Of all of his powers, clemency comes closest to fulfilling his view that as president he can do whatever he wants and, at the same time, to revealing the primitive and instinctive component of Trump’s personality, what Sigmund Freud called “id”.

The president has proudly proclaimed that “all agree the US president has the complete power to pardon.” Trump’s ability to use this power in this way contrasts with his openly expressed frustration that “because I’m the president of the United States, I am not supposed to be involved with the Justice Department … I’m not supposed to be doing the kind of things that I would love to be doing.”

But the president is not alone in taking an expansive view of executive clemency.

According to an 1866 decision of the US supreme court, that power is “unlimited”, extending to “every offense known to the law”. Other courts have been even more explicit about the vastness of the clemency power, saying: “An executive may grant a pardon, for good reasons or bad, or for any reason at all, and his act is final and irrevocable. Even for the grossest abuse of this discretionary power, the law affords no remedy.”

No wonder Trump calls the clemency power a “beautiful thing”.

In spite of his appreciation of this beautiful thing, Trump has been relatively parsimonious in using it. In his three years in office he has pardoned or commuted the sentences of only 35 people. Contrast this with, President Obama who issued just under 2,000 clemencies during his eight years in office.

But, as in other arenas, when the president has used the clemency power he has circumvented the norms and procedures that in the past have governed it. He has bypassed the office of the pardon attorney in the justice department which for more than a century has played a key gatekeeping role for people seeking clemency. He has ignored offenders who have followed that department’s procedures, while granting pardons and commutations to a rogues’ gallery of the notorious and the well-connected or to people whose cases seem to have struck his fancy.

In addition, the people to whom Trump has been merciful are overwhelmingly male and white. Only two of Trump’s best-known acts of clemency have gone to African Americans. One went to Alice Marie Johnson, who served 21 years of a life sentence for a non-violent drug conviction. The other went, posthumously, to Jack Johnson. The famous boxer was sentenced in 1920 for violating the Mann Act, when he traveled with a white woman he was in a relationship with across state lines.

In his use of the clemency power, Trump has shown special solicitude to people whose actions violate the public trust and subvert the system of justice itself.

This has been true since his first use of that power, in August 2017, when he pardoned former sheriff Joe Arpaio. Arpaio had been jailed for his defiance of a court order directing him to stop engaging in racial profiling. It was also revealed in his April 2018 pardon of Scooter Libby, an aide to former vice-president Dick Cheney who was convicted of perjury and obstruction of justice, and in the pardon of the Rudy Giuliani associate Bernard Kerik, who pleaded guilty to federal charges of tax fraud and lying to investigators in 2009.

And, in commuting the sentence of the former Illinois governor Rod Blagojevich, Trump was granting clemency to his own alter ego. Blagojevich, a Democrat, was impeached and removed from office in 2009 for corruption, and was later indicted on multiple corruption charges. Like Trump’s infamous effort to impose a quid pro quo on the Ukrainians, Blagojevich was accused of trying to solicit personal favors and sell Barack Obama’s vacant US Senate seat when he won the presidency. He was sentenced to 14 years in prison.

During his trial, a taped phone conversation revealed Blagojevich saying: “I’ve got this thing, and it’s fucking golden. I’m just not giving it up for fucking nothing.”

Signaling his identification with Blagojevich the president said: “I would think that there have been many politicians – I’m not one of them by the way – that have said a lot worse over the phone.” Trump dismissed the governor’s comments from his phone call as “braggadocio” and insufficient for a conviction.

Writing in 1833 about the president’s clemency power, the chief justice of the United States, John Marshall, said that it would always entail “an act of grace, proceeding from the power entrusted with the execution of the laws”. This grace, he conceded, is beyond the reach of legal compulsion or regulation. It is left to the president’s unfettered discretion, and its wise use depends on the judgment and propriety of those who wield it. Clemency, in the words of the English legal theorist, William Blackstone, is “a court of equity in [the president’s] own breast”.

Assange’s claim, along with Trump’s recent pardons and commutations, raises doubts yet again about the judgment and propriety of the current president. Americans should recognize those things for what they are, namely more signals of the president’s disdain for the rule of law. Because there is no legal avenue to challenge Trump’s use of clemency, it is left to the American people to decide whether to continue to entrust Donald Trump with the unfettered power to grant pardons and reprieves.

• Austin Sarat is professor of political science and law, jurisprudence and social thought and the author of a book on the use of clemency in capital cases, Mercy on Trial: What it Means to Stop an Execution