Enlightening the pardon power

President Trump’s use of the pardon power has gone too far — even for Republicans.

Trump commuted the sentence of former Illinois governor Rod Blagojevich, whom Trump included and then fired on “Celebrity Apprentice.” The same year, Blagojevich was found guilty of public corruption for the first time; after a retrial, he was sentenced to 14 years in prison.

The commutation of Blagojevich’s sentence is not surprising. Since taking office, Trump has deployed the pardon power as a political tool to assist allies and express contempt for a variety of laws. By pardoning former Maricopa County Sheriff Joe Arpaio, Trump sent the message that discriminatory tactics were permitted in immigration enforcement. Through pardoning conservative commentator Dinesh D’Souza, Trump brushed away campaign finance laws. And, by commuting Blagojevich’s sentence, Trump has demonstrated his disregard for public corruption, potentially setting up a self-pardon for the activities detailed in the Mueller Report.

This is perhaps why Illinois House Republicans opposed a Blagojevich pardon last year when Trump was contemplating it. Several issued a statement condemning “pay-to-play politics” and insisting on taking “a strong stand” against this kind of corruption. The whole Illinois House Republican delegation wrote to Trump to oppose the pardon. And on Tuesday they issued a joint statement voicing their disappointment at the commutation.

Pardons that seemed politically motivated or gave the impression of corruption have generated public outcry in the past. Former President Bill Clinton was widely condemned for his eleventh-hour pardon of financier Marc Rich. No former president has, however, used the pardon power in as consistently a political fashion as President Trump.

Trump’s pardons would make the founders of our country cringe.

Few people know that no less a figure than Thomas Jefferson, drafter of the Declaration of Independence, was highly suspicious of pardoning. Jefferson had read extensively among enlightenment thinkers, as demonstrated by the recent edition of his Legal Commonplace Book. There he observed that Montesquieu, widely known in late eighteenth-century America, deemed the pardon power necessary only under a monarchy. Jefferson also included passages from Beccaria’s popular “On Crimes and Punishments” claiming that clemency would no longer be needed once legal change rendered punishment milder. For many enlightenment thinkers, pardoning was too dependent on personal favoritism and the whim of the king and sidestepped a more systematic reform of criminal law.

Under the influence of these enlightenment thinkers, Jefferson explicitly eliminated the power to pardon in his 1776 draft constitution for Virginia. There he denied to the governor or state executive official the “prerogative . . . of pardoning crimes, or remitting fines and punishments.” He also would have barred the legislature from pardoning. At the same time, he rejected capital punishment for almost all crimes but murder and generally advocated for a milder administration of justice.

Jefferson’s proposal was not adopted, and the Virginia Constitution allowed for pardoning. Jefferson’s skepticism about the pardon power nevertheless shows the enlightenment roots of longstanding American critiques of pardoning. These have flared up at moments like President Clinton’s pardon of Mark Rich and Trump’s many exercises of the power.

The model of pardoning that Jefferson and his influences opposed was that of 17^th Century English kings, who would often grant pardons to advisors and favorites who had gotten into legal trouble or found themselves in conflict with Parliament. These episodes resonate with Trump’s previous pardons. They would be recalled even more vividly if Trump pardoned himself and his close associates before stepping down from the presidency. Commuting Blagojevich’s sentence brings us one step closer to that scenario by reinforcing Trump’s blasé attitude about government corruption.

An alternative paradigm for pardoning has developed through the operations of the Office of the Pardon Attorney at the Department of Justice since the late 19^th Century. Through screening all requests for executive clemency and evaluating their merits, the Office of the Pardon Attorney introduced a measure of regularity into the process, rendering the exercise of pardoning more a function of bureaucratic administration than executive discretion. This kind of pardoning might pass muster under Jefferson’s enlightenment vision, despite his personal desire to eliminate pardoning entirely.

Pardoning of this sort remains necessary in America today. The criminal justice reforms that enlightenment thinkers envisioned may have happened in Europe but left America behind. Both the crisis of mass incarceration and the racially disparate administration of criminal law demand all the tools that can be mustered to correct them, including pardoning. Pardons like those of low-level drug offenders help to accomplish the enlightenment goal of ameliorating criminal law.

President Trump’s Superbowl ad promoted his sole pardon of an ordinary person convicted of a drug crime. He should build on this enlightened model, and eschew further pardons of the Blagojevich variety. The former path would bring him closer to the vision of the founders, the latter makes him look more like the English monarchy they fought against.

Bernadette Meyler is professor and associate dean at Stanford Law School. She is the author of Theaters of Pardoning, published by Cornell University Press.