The U.S. President’s use of the pardon power is plenary, and is built into the U.S. Constitution. Article II, Section 2 of the U.S. Constitution bestows upon the president the power to “grant Reprieves and Pardons for offences against the United States, except in Cases of Impeachment.” The link just below provides some useful history.
Amnesty and Pardon – Historical Overview – Power,
Century, President, and Law – JRank Articles http://law.jrank.org/pages/506/Amnesty-Pardon-Historical-overview.html#ixzz5h1T5e9JZ
Historically, the king, or the queen ––as “sovereign” over the lands and people that they ruled–– exercised the pardon power. In the famous case of Queen v. Dudley and Stevens, the English survivors of a ship’s sinking in 1877 were prosecuted for killing a ‘cabin boy’ on day 17 of their ordeal, after the boy had been lying prostrate and semi-conscious from drinking seawater. The defendants and one other adult ate the remains of the boy, and lived to be rescued a few days later.
https://la.utexas.edu/users/jmciver/357L/QueenvDS.PDF
After a trial, the judge found that Dudley and Stevens would not have survived except for having killed and eaten the cabin boy; nonetheless, they were convicted of murder, and sentenced to die. They were later pardoned by Queen Victoria, as the facts of the case were unusual, and the defendants seemed to have engaged public sympathy.
One of the best articles on the pardon power was scribed in 2018 by Mark Greenberg and Harry Litman. In it, they say:
“The pardon is an exceptional remedy but one with an important role in the justice system. In the words of Justice Oliver Wendell Holmes, “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.”
“The pardon power, then, is not a whimsical add-on but an integral feature of the criminal justice system. It has deep links to moral values—think of the biblical injunctions to temper justice with mercy and to forgive those who trespass against us. In this spirit, Alexander Hamilton wrote in Federalist 74: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” The use of the pardon power should be guided by society’s highest aspirations of justice, mercy and forgiveness.
But as used by U.S. Presidents in recent years, and as used by President Trump so far in his first term as POTUS, the use of the pardon power has been corrupted from these high ideals.
Many will remember President Ford’s pardon of Richard Nixon, to get the whole “Watergate” business behind us. His decision, as reported in the New York Times, was a “shock” and an “outrage” to many who wanted to see Nixon held to account by the U.S. legal system.
Others may recall President Carter’s pardon of Vietnam War era draft dodgers, or George H.W. Bush’s pardon of Casper Weinberger for his involvement in the Iran-Contra Scandal. What seems different about the first President Bush’s pardon is that he was directly involved in the secret arms for hostages deal worked out by officials in the Reagan Administration. (Bush was Reagan’s vice president).
https://archive.nytimes.com/www.nytimes.com/books/97/06/29/reviews/iran-pardon.html?_r=1&oref=slogin
This strongly suggests that in exercising the pardon power, President Bush may have had a conflict of interest: the pardon would benefit him, as well as the person pardoned. According to the New York Times article, above:
“But in a single stroke, Mr. Bush swept away one conviction, three guilty pleas and two pending cases, virtually decapitating what was left of Mr. Walsh’s effort, which began in 1986. . .
Mr. Walsh bitterly condemned the President’s action, charging that “the Iran-contra cover-up, which has continued for more than six years, has now been completed.” Mr. Walsh directed his heaviest fire at Mr. Bush over the pardon of Mr. Weinberger, whose trial would have given the prosecutor a last chance to explore the role in the affair of senior Reagan officials, including Mr. Bush’s actions as Vice President.”
Many followers of Presidential pardons will recall Bill Clinton’s last minute pardons of “the fugitive financier” Marc Rich. It seems that Rich’s wife was a major contributor to President Clinton’s political campaigns and the Clinton Foundation. Rich himself had a net worth of $30 billion and had made extensive contributions to Israeli causes, and a large network of people had joined in the effort to persuade president Clinton to grant a pardon.
https://www.chicagotribune.com/sns-clinton-pardons-analysis-story.html
But President Trump’s use of the pardon power thus far puts him in a league of his own. Consider some of his notable pardons thus far: Scooter Libby, Dinesh D’Souza, and Joe Arpaio. The Arpaio and D’Souza pardons are far outside the realm of regular procedure and rationale for pardons. The regular process involves the submission of paperwork to the Justice Department, asking for pardon, and substantively (as Greenberg and Litman explain), the reasons for a pardon fall into three categories.
“At a very general level, there are three broad categories of cases: those in which there was, from the start, no reason for punishment because the conviction or punishment was unjust; those in which the reasons for punishment are no longer applicable, or in which there is special reason for forgiveness; and—a more dubious category—those in which the reasons for punishment are outweighed by the public interest.”
Ford’s pardon of Nixon, although controversial, presumably falls into the third category. Trump’s pardon of former heavyweight champion Jack Johnson is justified under the first category: his conviction under the Mann Act was vindictive and motivated by racism. The pardon of Lenny Bruce granted by the Governor of New York was for convictions based on comedy routines that are “now recognized as valuable social critiques.” (Greenberg and Litman)
By contrast, the pardons of Joe Arpaio and Dinesh D’Souza were essentially pokes in the eye to “liberals” who disliked Trump, and these pardons did not follow established procedures. Those procedures include a system of rules and procedures administered by the Justice Department’s Office of the Pardon Attorney. These rules are advisory, and do not bind the President, but have been followed by most Presidents. The rules include various time limits –– such as applying no sooner than five years after release from confinement, the need to account for the petitioner’s acceptance of responsibility, remorse, or atonement for the offense, character witnesses, and more. Applications reach the White House counsel’s office, where they are examined and a recommendation is made. The pardon attorney and the White House counsel solicit the views of various stakeholders in the justice system, especially law enforcement officials.
As Greenberg and Litman note, “Indeed, by these criteria, D’Souza is a paradigmatic case of an undeserving applicant. Not only had he not shown remorse but he immediately waxed triumphant about the pardon, claiming that the conviction had been a “vindictive political hit”—a partisan attack by the Obama Justice Department motivated by President Obama’s anger about a movie D’Souza had made.” They continue: “The main motivations for the pardon appear to have been gratitude for D’Souza’s help in promulgating a favorite Trump storyline of “deep state” corruption at the FBI, and the desire to strike at Preet Bharara, a political opponent of the president who had prosecuted D’Souza while serving as the U.S. attorney for the Southern District of New York and whom Trump later fired.”
Joe Arpaio –– the self-proclaimed “toughest Sheriff in America” –– was jailed for criminal contempt of court. A federal judge found that Arpaio’s office was continuing its illegal immigration “roundups,” based on racial profiling of Latinos, defying an injunction entered by another federal court. There was no pardon application pending when Trump granted the pardon, and no one consulted the Department of Justice, “whose institutional credibility was on the line in light of its findings about Arpaio’s racial profiling and other misconduct.”(Greenberg & Litman). Indeed, Trump has not even appointed a permanent pardon attorney in his administration. Finally Arpaio had no qualifying characteristics specified by the pardon guidelines. Not only had five years not elapsed since his release, Trump pardoned him while he was awaiting sentencing.
“Scooter” Libby was convicted in 2007 of lying to investigators and obstruction of justice. IN the run-up to the Iraq invasion during the Bush-Cheney years, a key question had been whether Saddam Hussein had “weapons of mass destruction.” Covert CIA officer Valerie Plame was married to Ambassador Joe Wilson, who contradicted the Cheney account of “yellowcake uranium” being obtained by Saddam Hussein from Niger, in, among other places, an Op Ed in the NY Times.
In apparent retribution for Wilson’s public statements, his wife’s cover was blown deliberately, possibly at Vice President Dick Cheney’s direction. Libby was Chief of Staff to Cheney at the time. Just like Trumps pardons of Arpaio and D’Souza, Libby’s pardon came out of nowhere. No pardon application was pending. Libby’s sentence had already been commuted by President George W. Bush, and his law license had been restored. Wilson and Plame had this to say about the pardon:
Many commentators agreed that Trump was trying to send a message to anyone being investigated by public officials: you can lie and be pardoned, even if you are breaching national security interests. Several observers thought Trump was “sending a message” to people like Paul Manafort, Michael Flynn, or even Michael Cohen.
https://www.cnn.com/2018/11/28/politics/ny-post-trump-manafort-pardon-on-the-table/index.html
As the New York Times reported in March of 2018, “Considering the possibility of a pardon strategy is no mere academic exercise. There are many indications that President Trump has contemplated employing it. Last fall, the president’s attorneys reportedly broached pardons with attorneys for former Trump campaign manager Paul Manafort and former Trump National Security Adviser Michael Flynn. This March, immediately following FBI raids to gather evidence from the President’s Trump Organization associate and former lawyer, Michael Cohen, the president issued a pardon to former Vice President Cheney aide I. Lewis “Scooter” Libby, who was convicted of obstruction of justice and perjury charges stemming from an earlier investigation. Many interpreted that pardon as a signal that President Trump is open to clemency for individuals convicted for lying under oath.”
Indeed, former Trump lawyer John Dowd reportedly floated the option of pardons to lawyers for Manafort and former National Security Adviser Michael Flynn last year. Flynn, at least, appears not to have accepted and made a deal with prosecutors last year.
Rudy Giuliani, known for making odd statements in the President’s defense, opined after Manafort was sentenced to jail that the Mueller investigation “. . .might get cleaned up with some presidential pardons.”
In effect, the occupant of the highest office in the land has and is perverting the pardon power to make political points and perhaps even to protect him from ongoing investigations that might lead to impeachment or to prosecution after he leaves office. Trump may be within legal boundaries here, but has far eclipsed others in abusing the pardon power. His use of the Presidential pardon power in several cases already is a clear abuse of his office and the rule of law.