Can We Rethink the Pardon Power After Trump?

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Former President Trump congratulates ex-Army Major Matthew Golsteyn, at a Florida dinner. Golsteyn, convicted of murder in the execution of a suspected bomb maker, was granted a full pardon by the president in November, 2019 over the objections of the Pentagon. Official White House Photo by Joyce N. Boghosian.

The most recent issue of the Federal Sentencing Reporter contains a series of essays dealing with the unusual use of the constitutional pardon power by President Donald Trump.

 In her introduction as guest editor of the issue, Margaret Love, who served as U.S. Pardon Attorney during the 1990s, considers what Trump’s abandonment of the bureaucratic tradition in pardoning reveals both about his concept of office and about the nature of the constitutional power itself.

Margaret Love

Margaret Love

Love argues that Trump’s “irregular and undemocratic pardoning” can and should lead to a more coherent and meaningful use of the pardon power in the service of an enlightened presidential policy agenda, and to a renewed commitment to the historically close relationship between pardon and the justice system.

She suggests that reforms in the management of the president’s power may lead to transformation of what she terms “the Justice Department’s unforgiving prosecutorial culture.”

She proposes several ways to restore legitimacy to the pardon power and its usefulness to the presidency:

    • Pardon’s most extreme uses can and should be limited;
    • Pardon should be supplemented with statutory remedies so that the president is no longer personally responsible for so much routine criminal justice business; and
    • Pardon should be managed in a way that serves the presidency and not the parochial interests of federal prosecutors;

Love has helped organize a series of online panels on successive Tuesdays in September that will explore in depth Trump’s use of the pardon power and how it is likely to influence pardoning by future presidents.

The first panel, on September 14, will discuss Trump’s abandonment of the bureaucratic tradition in pardoning and what this reveals both about his concept of office and about the nature of the constitutional power.

The second panel, on September 21, will consider whether Trump’s pardons may prompt much-needed reforms in sentencing law and practice, and in relief from collateral consequences.

The third panel, on September 28, will consider possible changes in how the pardon power is administered resulting from its idiosyncratic use by President Trump, and whether the Justice Department should remain responsible for advising the president in pardon matters.

This series is jointly organized by the Drug Enforcement and Policy Center, the Collateral Consequences Resource Center, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance.

The series is free, and those interested in the first panel and succeeding panels may register at this link.

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