Why we need more presidential pardons
Can President Trump learn from Obama's presidential mercy?
President Donald Trump has awe-inspiring authority and power at his fingertips. It's an experience that his presidential predecessors have called profoundly humbling. Of course, most of that authority comes with significant restrictions, thanks to the checks and balances of the Constitution and the need for alliances at home and abroad to effectively use them. Most presidents have come to both appreciate and resent those limits.
But there is one authority granted to the office that is plenary, unchecked, and solitary: the power of clemency on federal offenses. Grants of pardon and commutation cannot be reconsidered or changed by any other official. The only boundaries on that role are self-imposed, based on politics, priorities, and the president's own view of injustice.
That is a daunting power — so daunting, in fact, that recent presidents have mainly refrained from using it until their terms have almost expired. And then, in at least a few cases, presidents have used clemency for highly political purposes, making it that much more difficult for their successors.
But America's presidents should use this power more, not less. And they certainly shouldn't feel the need to wait until the politically safe end of their term to wield it.
Obama made two controversial commutations on his way out of the White House, both of which contradicted other policy and security positions of his presidency. The commutation of Chelsea Manning's 35-year prison sentence for disseminating more than 700,000 classified communications to WikiLeaks contrasted sharply with claims made by Obama and his administration over the role the website played in Russian attempts to influence the presidential election. Over the previous two months, Obama had excoriated WikiLeaks and implied it had connections to Russian intelligence. That would suggest that Manning's "leak" — if the theft and exposure on that massive a scale can be called that — was much more significant than WikiLeaks' publication of DNC emails. Yet Obama, who had been lobbied hard by anti-war progressives and the LGBTQ community on Manning, decided that seven years was long enough for Manning to have been in prison.
Worse yet was the commutation of Oscar Lopez Rivera, a leader in one of the most vicious domestic terror organizations in American history. His radical pro-Puerto Rican independence group Fuerzas Armadas de Liberación Nacional (FALN) conducted more than 130 bombings from 1974 to 1983, as Zach Dorfman recounts for Politico. The worst of these killed four people and wounded 63 others in 1975; another series of bombs in Manhattan forced the evacuation of 100,000 people and killed one. They targeted the political process in 1980-81, holding campaign workers hostage in both the Jimmy Carter and George H.W. Bush campaigns, and later threatened to kidnap Ronald Reagan's son.
In that same year, authorities finally captured Lopez, who got a 55-year sentence for seditious conspiracy, armed robbery, and other charges. Later, Lopez got an additional 15 years for an attempted escape. Unlike his FALN conspirators, who got commutations from Bill Clinton — another controversial clemency action — Lopez never publicly disavowed his goals of overthrowing the U.S. or his tactics.
Dorfman concludes that Obama issued the commutation for the same reason Clinton released the other FALN convicts — for nakedly partisan purposes. Hundreds of Puerto Rican interest groups weighed in on behalf of these domestic terrorists in both cases, and their vote matters, particularly in the swing state of Florida. "[I]t strains credulity," Dorfman writes, "that Obama would release Lopez were his cause not championed by powerful politicians within his own party, and if Puerto Ricans did not represent an important, and increasingly strategically located, Democratic voting bloc."
Crass, nakedly political clemency actions only heighten the political risks of future clemency actions. And that's a shame, because Obama actually demonstrated the wisdom of investing the presidency with the power of clemency — even if he waited until he could no longer suffer political damage for doing so.
The outgoing White House celebrated Obama's final total of 1,715 commutations, noting that it exceeded the total number of commutations by his last 13 predecessors combined. However, only 21 of those 1,715 came before the second midterm of Obama's presidency. He issued 163 in 2015, ramping up to 992 in 2016 — most of which came after the election on Nov. 8 — and hundreds more in January 2017.
Nevertheless, Obama's commutations were targeted to an issue where he has consistently argued that injustice occurs: mandatory federal sentencing, especially in non-violent drug cases. This is precisely why presidents have this authority — to correct what they believe are demonstrable injustices in the federal system. The founding fathers understood that no system of justice is perfect, and that the traditional power of lords in the English feudal system to grant mercy could be used to ensure that presidents and governors of states can address injustices as they occur. Whether one agrees with Obama that these lengthy sentences are indeed injustices, the people elected Obama to exercise that judgment, and in these cases he did so consistent with his stated policies and beliefs.
Will President Trump choose to use this authority more consistently and assertively than his predecessor? Reason's Jacob Sullum is skeptical. "It's a safe bet," he wrote on Inauguration Day, that the law-and-order Trump "will show a lot less interest in clemency than Obama did." However, Trump also campaigned on reducing the federal regulation and laws that have created a mess for people and businesses. That recognition should be followed with an even greater sense of mission for clemency directed to the injustices that this massive regulatory state creates, making the need for presidential action even greater than ever.
The best way to eliminate injustice is to refine and transform our system of government to stop them before they occur. Each president has a different vision for that purpose, but they have the tool of clemency to use while they pursue those policy goals. The quality of presidential mercy should not be restrained to its final stanza.