President Trump’s pardon not only ends any injustice to Flynn, it restores the proper balance of the separation of powers.
PTrump resident granted a pardon to Michael Flynn, his former national security adviser, today. Flynn had pleaded guilty to lying to FBI agents about conversations, during the 2016 transition, with the Russian ambassador about sanctions. Flynn’s pardon should put an end to a blatant violation of the Constitution’s separation of powers, even if it gives rise to baseless accusations from another.
Although Flynn pleaded guilty, the circumstances of the case raised serious concerns about whether the government had acted correctly. The FBI, for example, questioned Flynn even though he did not appear to have broken any law. In May, Attorney General William Barr ordered the case dropped. Under the Constitution, only the President has the responsibility and the duty to ensure that “the laws are faithfully carried out”. From this clause flows the executive power’s discretion in prosecuting matters – the exclusive right to decide what matters to prosecute or not. As I explain in my book, Chief Defender: Donald Trump’s Struggle for Presidential Power, under normal circumstances, a president’s decision to drop a lawsuit is final and cannot be reviewed by any other branch.
But these are not normal times. In yet another example of yet another institution willing to twist the rules even more in resistance to Trump, federal courts would not accept the President’s exercise of prosecutorial discretion. Instead, Federal Judge Emmet Sullivan refused to allow the Justice Department to drop the case, and the Full Federal Court of Appeals in Washington, DC upheld his ruling. These judicial antics infringe on the president’s sole authority to enforce the law and also pull the courts beyond their limited constitutional role to adjudicate only cases or controversies between the parties.
President Trump’s pardon not only ends any injustice to Flynn, it restores the proper balance of the separation of powers. Courts will no longer claim the right to initiate proceedings that even prosecutors no longer wish to initiate. Under the Constitution, courts are to decide cases or controversies, not create them. The pardon restores the right of future presidents to direct prosecution, including choosing the cases that represent the best results for the use of limited federal resources.
Of course, Trump’s critics immediately jumped on the attack. House Intelligence Committee Chairman Adam Schiff (D., Calif.) Said Flynn had chosen “loyalty to Trump over loyalty to his country” and Trump’s decision was aimed at protecting himself from a criminal investigation. He called this “corruption of the editor’s intention” by giving the president broad powers of pardon. “It’s no surprise that Trump came out just as he walked in – twisted all the way,” Schiff said. House Judiciary Speaker Jerrold R. Nadler (D., NY) called the pardon “undeserved, unprincipled and one more stain on President Trump’s rapidly diminishing legacy.”
As they did during impeachment, Schiff and Nadler attempt to create constitutional controversy where there is none. These comments ignore the text, structure and history of the president’s power of grace. Article II, Section 2 of the Constitution states that the President “shall have the power to grant stays and pardons for offenses against the United States, except in the event of an indictment.” This text grants the President a broad, non-revisable power of pardon, a power that British kings and state governors had long used when the Constitution was ratified. This shows that the perpetrators knew, when they wished, how to create exceptions to this power: a presidential pardon cannot reach state crimes, civil cases or impeachment. It does not contain an exception for pardons that appear to benefit the president. The drafters had rejected proposals to grant pardon to the courts or even the Senate in cases where the president might have a conflict of interest.
The history of the passage of the clause only supports this reading and rejects the claims of Schiff and Nadler. During the 1787-88 constitutional ratification debates, anti-Federalists attacked the pardon clause because it could allow a president to protect fellow co-conspirators in a plot to overthrow the government. “The President of the United States has unlimited power to grant pardon for treason,” argued George Mason in his widely publicized objections to the Constitution, “which can sometimes be exercised to remove from punishment those whom he had. secretly incited to commit the crime. and thus prevent discovering one’s own guilt. During Virginia’s ratification convention, Mason repeated his office. “[T]The president should not have the power to forgive because he can frequently forgive crimes that have been advised to him, ”Mason said. “If he has the power to grant pardon before indictment or conviction, can he not interrupt the investigation and prevent detection?”
In Federalist No. 74, Hamilton responded to Mason and other anti-federalists with two reasons for forgiveness. The Constitution creates a power of forgiveness “for humanity and good policy” to allow “to mitigate the rigor of the law”. Accordingly, he should be “as little hindered or embarrassed as possible”. Recalling the original purposes of forgiveness in British history, mercy drives most of the forgiveness in our history.
Hamilton provided a second, broader defense of pardons that directly addresses today’s controversy. Hamilton championed unlimited power of forgiveness, even in cases of betrayal, and even when the president himself was one of the conspirators. He explained that the power of forgiveness must remain unfettered so that it can help end public unrest or civil war. “In seasons of insurgency or rebellion there are often critical times, when a timely offer of forgiveness to insurgents or rebels can restore the tranquility of the Commonwealth,” he wrote. Only the president could act vigorously in times of crisis and use pardons.
The federalists could have added treason as a third exception to the pardon clause, or they could have required the consent of the Senate to obtain a pardon. Instead, they have stood their ground and defended the vast reach of power on the grounds that the president might need to act quickly in times of rebellion and even civil war. Federalists do not dispute that the president can forgive the conspirators or even himself; they responded that such a possibility was the price of the wider benefits of unlimited power. Hamilton’s pardon power argument built on the structure of the Constitution by focusing power on prosecutions and the ability to reverse them, to the president. The power of forgiveness would bring benefits not only by easing the harshness of the criminal law, but by improving the security of the nation. Forgiveness did not come only from executive grace; rather, they served the instrumental purpose of benefiting the public welfare. Trump’s pardon to Flynn, despite political controversy, helps defend the ability of future executives to act swiftly and decisively in response to challenges to the well-being of the nation.
However, Trump should not hold his breath as he waits for Joe Biden’s thanks.