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The Guardian view on US presidential pardons: go no further

Editorial
·3-min read
<span>Photograph: Jonathan Ernst/Reuters</span>
Photograph: Jonathan Ernst/Reuters

A US president’s power to pardon and commute sentences for federal offences seems to explode America’s claims as a nation of laws and proper process. Donald Trump is no respecter of laws in any aspect of his life, so there is no surprise that he may now be gearing up to make extravagant use of the power before he is prised out of the White House in January.

Two things should be remembered here. First, the pardon power does not extend to state laws, only federal ones. Second, other presidents have been here too. Barack Obama, who issued 212 pardons in eight years, granted 330 commutations on his very last day as president in 2017. At this stage of his own presidency, Mr Trump is a remarkably light pardoner and commuter. At the time of writing, he has issued a mere 28 pardons and 16 commutations, although all that could change soon.

One explanation, and a difference between Mr Trump and his predecessors, is that a high proportion of his acts of clemency have directly involved his own allies and staff. The latest of these included commutation for his friend Roger Stone, and a pardon for his former national security adviser Michael Flynn, both of whom were convicted of obstructing the Robert Mueller investigation into the 2016 Trump campaign.

As the end nears, Mr Trump may be planning to break new ground in other ways. He has sometimes mused that he can pardon himself, something no president has ever done and which many lawyers think is unconstitutional. But he is widely reported to be eyeing “pre-emptive” pardons to his children, Donald Jr, Eric and Ivanka, as well as to his son-in-law, Jared Kushner, and his lawyer, Rudolph Giuliani. This week, it has been confirmed that the justice department is investigating an alleged “bribery for pardon” scheme at the White House. Any of these actions, never mind all three, would plumb new depths in Mr Trump’s four-year abuse of the presidency.

Shocking though such possibilities are, there is an established legal argument for pardons. In this country, a royal pardon was issued in 2013 to the scientist Alan Turing, who took his own life after being convicted under anti-homosexuality laws in 1952. This leads to a wider moral point. “Pardon’s the word to all,” pronounces Cymbeline in the final scene of Shakespeare’s late play. The former archbishop of Canterbury, Rowan Williams, has described Cymbeline’s line as a moral clarion call. The ability to pardon a person helps to elevate human beings, the archbishop argued. The human capacity for compassion and reconciliation is, he has said, evidence of the hand of the divine.

There is, though, nothing remotely divine or compassionate about Mr Trump. The legal power he wields should be used very sparingly, and only in line with a proper and transparent process. Mr Trump has no interest in such things. He may not be able to put himself beyond the law, but he can do massive damage along the way. That would indeed be unpardonable.