Every year, just before Thanksgiving, the President of the United States keeps the time-honored tradition of the National Thanksgiving Turkey Presentation. Since the late 19th century, foreign dignitaries seeking favor, various organizations evincing patriotism, and ranchers promoting their industries have sent gifts of livestock to the U.S. Chief Executive. By the time of the Coolidge administration in the 1920s, the flood of gifted turkeys became too much, prompting the President to discourage the sending of birds to the White House. Equally time-honored, it is said, is the practice of the Chief Executive of exercising his federal pardoning power to grant clemency to birds presented to him every Thanksgiving. But how time-honored is that charming tradition, really? One story recorded in the press suggests it goes back to Lincoln, who spared a turkey’s life when his son Tad pleaded for mercy on its behalf. But this was no “Presidential pardon.” Another claim is that President Truman started the tradition, as his administration had promoted “Poultryless Thursdays” in an effort to conserve food in 1947, a year when Thanksgiving, Christmas, and New Year’s all fell on a Thursday. In fact, that year marked the first official presentation of birds to the White House, but in protest, as the poultry industry inundated the President with crates of live “Hens for Harry.” But Truman relented in his food conservation efforts before Thanksgiving, so this was not the start of the tradition. Some say JFK issued the first turkey pardon, but he only said, rather vaguely, “Let’s keep him going” in regard to the turkey presented to him. It was Washington Post reporting on his statements that used the words “reprieve” and “pardon.” In ensuing years, it became the norm for the turkey presented to the White House to be retired to a farm rather than face the butcher’s block, but it appears the first time a President actually joked about issuing a pardon to a turkey was very recently, in the 1980s, when in the presence of animal rights protesters George H. W. Bush joked that the turkey presented to him was “granted a Presidential pardon as of right now.” Most recently, President Trump kept up this new tradition, although he sometimes politicized the occasion. For example, in 2019, amid an impeachment inquiry, he suggested the Turkeys would be subpoenaed by House Democrats, and he likened the turkeys to the media, saying both were “closely related to vultures.” More ironic today, though, were his jokes during the ceremony in 2018, when he quipped about how the turkey presented to him, named Peas, had been chosen over its alternate, named Carrots: saying it had been a fair election, but that the Carrots had refused to concede, and demanded a recount that in the end changed nothing. Who’s the turkey now?

Currently, though, if you were to look up “Trump” and “pardon” on the Internet, any search engine will give you lots of other results besides his most recent turkey ceremony. The power of the Presidential pardon is currently under scrutiny. One reason is because, as a lame duck, Trump is likely to wield his power to grant clemency more liberally, issuing what are known as “eleventh hour pardons,” as is typical of Presidents whose clout with the legislature is greatly reduced during the last months of their administrations. Secondly, and somewhat more uniquely, this is because Trump himself is believed by many to be looking down the barrel of prosecution after he leaves office. The list of possible federal criminal charges that he might be indicted on after leaving office include violations of the Foreign Emoluments Clause in his acceptance of money from foreign governments through his golf courses and hotels, obstruction of justice and perhaps witness tampering in his efforts to disrupt the Mueller investigation into Russian election interference, and bribery of the Ukrainian president in his attempts to get them to launch a groundless investigation into Biden’s son. In part, the likelihood of his prosecution explains his efforts to overturn the election and remain in office by any means, for retaining the office of President grants him some measure of immunity, although the extent of such immunity is debated. Since a tweet in 2018, Trump has publicly claimed his “absolute right” to pardon himself, a right that is also disputed by legal scholars but that many still suspect he may attempt to exercise before vacating the White House. So this holiday season, let’s examine the constitutional power of presidents to pardon those convicted of federal crimes or commute their sentences, considering how it has been used and abused in the past in order to determine whether it should be restricted or reformed in the future.

Pres. Bush issuing the first Presidential pardon of a turkey. Public Domain image.

As we consider the possibilities for Trump’s eleventh hour use of the pardon power during the last months of his presidency, we should look at how he has used it prior to his lame duck period. Typically, presidents save their most controversial pardons for their last days in office, but Trump has not previously shrunk from issuing controversial pardons. Among the list of pardons he has issued are a variety of right-wing ideologues who have praised him in the media and donated to his PACs, many of them guilty of bribery and campaign finance violations, like Rod Blagoojovich and Dinesh D’Souza, and some guilty of far worse violations, like Sheriff Joe Arpaio, who refused to stop racially profiling and mistreating immigrants despite a court order. But perhaps the most blatantly corrupt use of this presidential power was when he commuted the sentence of Roger Stone, his longtime political advisor, who had been convicted of witness tampering, obstruction, and lying to Congress with regard to Mueller’s Russia investigation. In what appeared to be a reward for Stone’s refusal to cooperate with prosecutors, Trump is said to have had his Justice Department pressure prosecuting attorneys to seek a reduced sentence, and in the end commuted the sentence he was given. Even as I write this episode, Trump has given a further indication of the eleventh hour pardons that may come, as he has pardoned Michael Flynn, his former national security advisor who pleaded guilty in the Russia investigation to lying about his meetings with a Russian ambassador while working with the Trump campaign. Earlier this year, Trump’s Justice Department attempted and failed to get the case against Flynn dismissed, so now lame duck Trump has let Flynn simply walk. Rather than a power to unfairly benefit cronies, the framers of the constitution envisioned this pardon power of the chief executive as a way to grant mercy, which is a common and usually applauded application of the power. Trump also has used the power to grant reprieves and clemency in a merciful spirit, although he has thereafter been known to prop up the recipients of such pardons in Super Bowl ads to burnish his image. However, even the framers must have foreseen the possibility of such a king-like power being abused, for they limited it in cases of impeachment. But, as with many unenforced norms, Trump has shown us that an unscrupulous President can break with tradition in such a way as to flout the rules. In fact, some in the media have suggested that his disregard for the traditions of the office warrant the passage of a constitutional amendment to do such things as require the release of tax returns, strengthen the Emoluments Clause, make the Attorney General answerable to Congress as well as the President, and to restrict the pardon power of a lame duck President. But does the history of presidential use of this power warrant amendment of the Constitution?

Some questionable uses of the President’s pardon power can be observed by William Howard Taft. First, his pardon of U.S. attorney John Hicklin Hall may raise some eyebrows. Hall had led investigations into fraud among land companies in Oregon, but it was later found that he himself had become complicit in the fraud by looking the other way and not prosecuting certain offenders. Worse than this, he used evidence of who had been involved in this land fraud to influence political races, extorting rival politicians and forcing them out of elections by threatening to leak information about their crimes to the public. After having been removed from office by Teddy Roosevelt and convicted of these crimes, President Taft pardoned him without any clear justification. But it must be remembered that there may have been other considerations, such as time served, good behavior, and expressions of contrition. So perhaps we should not judge Taft unfairly. Another example from among Taft’s pardons actually illustrates how the corruption of others might take advantage of the President’s power to pardon. I refer to Taft’s pardoning of the so-called “Ice King,” Charles W. Morse, a legendarily corrupt businessman who had leveraged political connections to gain a stranglehold on the ice business in New York, a monopoly that allowed him to purchase numerous shipping companies and become active in banking. It was as a banker that he ran afoul of the law, manipulating copper prices and setting off a banker’s panic in 1907. For his violation of federal banking laws, he was sentenced to 15 years imprisonment, and immediately commenced petitioning President Taft for a pardon, paying journalists, lobbyists, and attorneys to pressure Taft to intercede. To Taft’s credit, he several times denied Morse’s petitions for a presidential pardon, only relenting and granting him clemency when Morse became ill with what several physicians declared to be a terminal case of Bright’s disease. However, after the pardon was issued, it turned out Morse had been faking the illness by drinking a cocktail of soap and other chemicals. Chagrined, Taft bemoaned that that he had been duped, but there was little he could do, for once awarded, it seemed the pardon was Morse’s to either use or decline. This treatment of pardons as gifts that afterward belong to the recipient had been established far back, during the Andrew Jackson administration, when Jackson had granted a pardon to George Wilson, a man sentenced to death for robbing a mail carrier. When Wilson declined the pardon, the Supreme Court decided that they must carry out the sentence despite the President’s wish to intervene, for once the pardon had been given, it no longer belonged to the President. Thus by this precedent, it seemed Taft could not take back the Ice King’s pardon once he’d signed it.

For an example of rather blatant corruption leading to undeserved pardons, we would look to the 1920s and the administration of Warren G. Harding, who it was well known owed much to a group of corrupt men known as the Ohio Gang. Once in office, despite protests from the Republican Party who had nominated him, he made one of these gangsters, Harry Daugherty, his Attorney General, and gave several others influential staff positions as well. In this office, Daugherty set about enriching himself and other Ohio Gang members. Among the moneymaking schemes that he concocted were selling federal jobs to the highest bidders and taking money from booze runners to look the other way as they trafficked in alcohol during Prohibition. In addition to these corrupt practices, it seems he also sold Presidential pardons, taking money and then fast-tracking recommendations for Harding to sign off on. In one case, when Harding learned that Daugherty had lied to him and gotten him to sign off on a pardon for a man who had not yet even served any time, Harding protested. One Ohio Gang underling of Daugherty’s, Jess Smith, ended up taking the fall for selling pardons this way, probably because Daugherty threw him under the bus. Harding insisted that Smith be removed from his position and sent back to Ohio, but before this could happen, Smith was found dead of apparent suicide in a house that he shared with Attorney General Daugherty. Smith’s wife, who had spoken with him the night before and found him the next day with his head in a waste-paper basket, a pistol in his hand and bullet holes in his temples, afterward suggested, based on their talk, that Smith had killed himself out of loyalty, to protect Daugherty. If that is indeed what happened, then it did not work. Daugherty and other cronies were thereafter embroiled in controversy and investigation. After President Harding’s death, a Senate investigation helped force Daugherty to resign, after which he was tried for his influence peddling more than once. However, both trials concluded with hung juries, and Daugherty never ended up convicted for his perversion of the president’s power to pardon. If he had been convicted, though, one assumes he would have just pulled some strings to get himself pardoned.

While the preceding was an example of how a corrupt Attorney General could misuse the presidential pardon power, all too often what we have seen is the President himself using his power to pardon in secret, sometimes even circumventing the Department of Justice and its petition process altogether. President Harry Truman was widely criticized for this in the early 1950s, when he made several eleventh hour pardons that to many reeked of cronyism. Just before leaving office, Truman commuted two sentences and pardoned 26 people, and several people with political connections were among those to receive his clemency, including erstwhile governors, congressmen, and other officials. One was a former counsel to the Democratic National Committee who’d been convicted of engaging in election fraud. Not only were Truman’s choices of who to pardon suspect, but the fact that his choices had not been recommended to him by the attorney in charge of pardon petitions in his Justice Department made allegations of cronyism even more credible. As a result of the furor over Truman’s eleventh hour pardons, his successor, Eisenhower, felt obliged to promise more transparency in the pardon process from then on. This promise, however, would not be kept by future administrations.

Truman at his desk. Public Domain image.

Beginning in the 1980s, abuse of the pardon power seemed to become rather more blatant. Ronald Reagan, for example, granted an eleventh hour pardon to a major Republican donor, George Steinbrenner, the notorious former owner of the New York Yankees baseball team. Steinbrenner had been tried for illegal contributions to Nixon’s election campaign and for obstructing justice by coercing employees into lying before a grand jury. Steinbrenner’s significant contributions make his pardon questionable, but more recently, declassified FBI documents suggest that Steinbrenner may have won his pardon by providing assistance to the FBI in certain undisclosed investigations. Far less debatable is the misuse of the pardon by Reagan’s VP and successor, George H. W. Bush, who at the end of his presidency was embroiled in investigations into his involvement in the Iran-Contra scandal. For any who don’t recall this controversy, it involved Reagan administration officials, likely led by Bush himself, breaking an arms embargo to sell weapons to the Islamic Republic of Iran in order to raise money to fund anti-Communist rebels in Nicaragua. Before leaving office, Bush pardoned several administration officials for their involvement in this affair, and it’s said that he even considered pardoning himself. And can you guess who advised President Bush to make these pardons? None other than Trump’s Attorney General, Bill Barr. Some have suggested that Bush’s pardoning of these officials amounted to a self-pardon, since it destabilized the investigation in such a way that he would never be indicted himself, but in fact, he stopped short of explicitly pardoning himself. One wonders, though, whether Barr, the poster boy for unchecked executive power, was pushing for that self-pardon.

Lest one be led to believe Republicans have a monopoly on misuse of the pardon in modern times, Bill Clinton is here in recent memory to show us how Democrats too have wielded the pardon to aid their cronies, and even their own family members. That’s right. Before leaving office, Bill Clinton pardoned his own brother, Roger, who had been convicted of possessing and trafficking cocaine in the 80s. This was not the most controversial of his eleventh hour pardons, though. Far more scandalous was his pardon of Marc Rich and his partner Pincus Green, who had been indicted on more than 50 counts of breaking a trade embargo to deal in oil with Iran and evading income tax in the amount of almost $50 million dollars, as well as other charges like racketeering and wire fraud. Rich and Green had fled the country rather than face justice, and they lived a life of luxury in exile in Switzerland. Eventually, though, Rich put out feelers to the Clinton administration about the possibility of a pardon. In the end, Clinton obliged, pardoning Rich and Green in the eleventh hour of his presidency, an act that afterward occasioned Senate hearings over whether the pardons were “appropriate,” specifically because of the sense that Clinton had granted the pardons as a quid pro quo after accepting gifts from the Riches, including generous donations to his legal defense fund and to his Presidential Library, as well as some quite pricy tables and chairs. The hearing, which raised the idea of a constitutional amendment, in the end amounted to little more than grandstanding, as all present appeared to concur with the professor of constitutional law they called on to give expert testimony, who declared that “[t]he Founding Fathers placed this absolute power, albeit undemocratic power, in the Constitution in recognition of the fact that governmental adherence to the letter of the law does not, in all instances, result in justice.”

Bill Clinton issuing a turkey pardon. Public Domain image.

This intended use of the Presidential pardon as a hedge against injustice and a mechanism by which to extend grace and mercy to those who most need it has a far longer history with far more examples than we can find of the power’s misuse. Going back to George Washington, we see the pardon power being used to heal divisions in the country after significant rifts. Over the protests of Alexander Hamilton, Washington chose to pardon two men involved in the insurrection of distillers in Pennsylvania over the taxation of whiskey, a fracas known as the Whiskey Rebellion. These men had been convicted of treason and sentenced to hang, but according to Washington, “The misled have abandoned their errors.” Washington expressed his reason for the clemency thus: “… it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.” Likewise, when Thomas Jefferson took office in the aftermath of the contentious election of 1800, as he sought to repeal the Judiciary Act of 1801 he also sought to repeal the Alien and Sedition Acts, which restricted the freedoms of foreigners and native residents alike, resulting in the imprisonment of citizens who spoke against the Federalist regime and President Adams, despite First Amendment speech protections. So in addition to dismantling these laws, Jefferson pardoned 10 people who were serving time for exercising their rights of free speech. And finally, there is the most dramatic example of pardons being granted in an effort to heal a divided nation: The Christmas Amnesty of 1868. See, I told you this was a holiday-themed episode. After President Abraham Lincoln’s assassination, Vice President Andrew Johnson assumed the presidency. More than once he used the presidential pardon power in an effort to heal the nation, including granting clemency to some of the conspirators in Lincoln’s assassination. On Christmas day, 1868, nearing the end of his tenure, he completed the gesture by pardoning every last Confederate. Granting “to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason.” That Christmas, Johnson wielded the power of the presidential pardon as it was meant to be wielded, and did his best fulfill the promise Lincoln made in his second inaugural address, “With malice toward none, with charity for all…let us strive on to finish the work we are in, to bind up the nation’s wounds….”

The Christmas Amnesty of 1868 demonstrates not only how the pardon power was intended to be used by the Framers of the Constitution, but also the extent of the power. It proves that the power can be used to issue mass pardons to entire categories of people, and it shows us that it can be used to pardon preemptively, before individuals have even been charged with a crime. Just as this preemptive effect is likely of great interest to Trump right now, who has yet to be indicted for any of the criminal activities in which he has been implicated, so too was it very important to another President looking down the barrel of criminal charges once he left the White House. That President was, of course, Richard Nixon. Just as Trump clearly believes he can pre-emptively pardon himself, so too Nixon considered self-pardon as a possible course of action. While the power to pardon pre-emptively has been established, however, the power to pardon oneself remains questionable. Constitutional scholars have argued on historical grounds that the Framers only failed to expressly forbid it because such an act is clearly unacceptable by the basic legal doctrine and principle of justice nemo judex in causa sua, a Latin phrase meaning “no one is judge in his own case.” Thus Nixon never attempted such a perversion of the presidential pardon power, and instead left his fate to Vice President Gerald Ford, who a month after Nixon’s resignation and his assumption of the office of President, granted a preemptive pardon to his predecessor on the grounds that, again, the nation needed to heal. In Trump’s case, whether or not he attempts a self-pardon, I think we could see a similar conclusion. If he actually tries to pardon himself, that may need to be decided in the Supreme Court—which of course, seems to favor him these days—but barring that nuclear option, a simple resignation would allow Pence to issue him a pardon. Somehow, though, Trump doesn’t seem the resigning type. Or, upon leaving office, President Elect Joe Biden could see fit to grant him a pardon in the same spirit as Ford’s pardon of Nixon, as an attempt to heal the country’s wounds and prevent a debasement of the office. This would, I think, be foolish, since even in many of the worst cases I’ve outlined, the recipients at least expressed some contrition. In fact, Presidents can make conditional pardons, and I think it would be appropriate for Biden to make any pardon of Trump conditional on some sort of public admission of guilt and remorse… which would, of course, mean Trump would never accept it, as it’s clear his ego would not allow it. Regardless, even if Biden issued him a full pardon, or if a self-pardon managed to work, Presidential pardons are only effective against federal crimes, but Trump also faces numerous criminal charges in civil and state courts. These include sexual harassment, defamation, and rape charges from women he has allegedly abused, and illegal campaign payments, money laundering, tax evasion and bank fraud being investigated by the New York Attorney General. So after all, no matter what, it looks like this turkey may not be getting the pardon he needs. Rather than retiring to run free across the golf courses of Mar-A-Lago, he may end up fleeing the country instead, as he has already suggested during his campaign.

Ford announces his pardon of Nixon. Public Domain image.

Since I wrote this, more has come out to indicate the depths of Trump’s misuse of the pardon power. It was reported that the DoJ is investigating an alleged bribery-for-pardons operation within the Trump White House, which sounds very much like the Harry Daugherty scandal I described in this episode. It will be interesting to see what comes of that. And even more recently, it’s been reported that Trump is considering granting pre-emptive pardons for his children, Eric, Don Jr, Ivanka, and son-in-law Jared Kushner, as well as his fixer, Rudy Giuliani. The power of the President to grant preemptive pardons has been clearly established, as has the ability to grant blanket immunity from federal prosecution when Gerald Ford pardoned Nixon for “all offenses against the United States.” If Trump were to pardon his kids, he would certainly have to make some similar blanket pardon, since pardoning them of any particular crimes that they haven’t yet been charged with would seem tantamount to an admission of guilt. And the same goes for any possible self-pardon. But even if he didn’t attempt a self-pardon, this would still be unprecedented, for he would be granting blanket immunity to numerous people, family members, who have never admitted fault or expressed regret as Nixon did. So I think this is going to get a whole lot crazier before the eleventh hour of Trump’s presidency ticks away.

The Eleventh Hour: Presidential Pardon Power

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