Pardon Me: The executive’s power to forgive | Analysis

February 22, 2022 9:00 am

Former President Donald Trump is the only president to be impeached twice. Photo by Justin Sullivan/Getty Images.

There’s been a lot of talk lately about pardons, indulgence or forgiveness of criminal offenses by chief executive government authorities, at both the federal and the state levels.

Former President Trump rekindled not-so-fond recollections of his extreme use of the pardon power for federal offenses — granted unconditionally to presidents in Article II, Section 2, clause 1 of the U.S. Constitution — at a January rally in Texas, when he strongly implied that he would, if again elected, pardon the Jan. 6 insurrectionists, whom he deems have been treated “so unfairly.”

Despite some misconceptions, the 45th President was not the Great Pardoner, at least in numerical terms. During his four years, he issued 237 pardons, a far cry from 1,750 given out by his predecessor, Barack Obama, albeit in two terms. They were among the more than 20,000 issued from the White House in the past century, headed by Franklin Delano Roosevelt’s record-setting 3,687 in his 12-plus years in office, both the longest tenure and most pardons in American history.

But it was the nature of Trump’s pardons that were most troublesome, including many of his cohorts and minions. The long list ranges from such notables as (ret.) Gen. Michael Flynn, Trump’s short-lived national security advisor; Steve Bannon, his first campaign manager before a stint in the White House; and presidential cheerleader Roger Stone, among many others.

In Trump’s final days in the White House, there was substantial speculation that he might pardon his immediate family members and even himself — conjecture that never materialized.  But, perhaps, the ex-president wishes he had done so, given the looming  prosecutions against him and his family members, although the most serious ones seem to be centered on prospective state court proceedings in New York over taxes and property valuations, and Georgia concerning attempted election manipulation — both of which would be beyond the reach of a federal pardon.

Minnesota pardons, too

In Minnesota, the pardon power has popped up, too, of late.

A week before Trump was bandying about pardons for the Jan. 6 offenders, the Minnesota Supreme Court issued a decision on a case that it had decided swiftly last summer concerning the process of pardons for state law violations here.

The matter involved Gov. Tim Walz’s desire to issue a pardon to an Ethiopian woman who had been convicted of manslaughter for killing her husband, which she claimed was the culmination of a long period of domestic sexual abuse.  The governor’s desire to pardon her after she had spent five years in prison was impeded by a Minnesota statute enacted in 1897.

That law required unanimity among the three members of Board of Pardons, an agency created a year earlier by constitutional amendment comprising the governor, the attorney general and the chief justice of the state Supreme Court, embodied in Article V, section 7 of the state constitution.

The referendum that approved of the constitutional amendment, one of more than 120 that have been added to the constitution since its inception in 1857, did not specifically modify the prior practice allowing the governor unconditional unilateral power to pardon, but replaced  it with the three-member board, without specifying the voting requirements for the body.

The statute the following year imposed the unanimity requirement that was the subject of litigation, first in Ramsey County District Court, where Judge Jennifer Fritsch deemed the measure unconstitutional. But the state Supreme Court overturned that decision in September in a case entitled Shefa v. Ellison, issuing a prompt ruling because the decision by the Board of Pardons was pending. But the court reserved its more detailed written decision until last month.

In both its decision last year and its explanatory exegesis, the justices rejected the governor’s argument that the three-member unanimity requirement infringed the constitutional provision, which is silent on that issue, and impermissibly gives each board member a “unilateral veto.” The court reasoned that the language and history of the statute mandates unanimity.

Meanwhile, the statute remains in effect with its unanimity requirement, which differs from the federal constitutional provision granting unilateral pardon power to the president. But there is one common feature to both the federal and Minnesota provisions: They expressly do not extend to one type of offense: impeachment.

The Minnesota Supreme Court’s unanimity ruling left the woman’s requested pardon in limbo due to the impasse on the board. She is subject to deportation by a federal authorities to her Ethiopian homeland, where she fears she will be killed by her deceased spouse’s relatives.

It remains to be seen whether Trump will be able to add to his relatively modest number of pardons by waiving the crimes and punishments of the insurrection. But if he does, he may have a lot of them to hand out to others, including more of his buddies, backers, relatives and maybe even himself.

It was Napoleon Bonaparte who famously crowned himself emperor of France in 1802. A prospective pardon by the once-and-maybe-future president would be the crowning blow to his misbehavior.

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