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The Presidential Pardon: Event Write-up
As we held this event, it was an historic day. President Trump was getting impeached for a second time, The Common Good had the honor of hosting former US Attorney, Joyce Vance, and Harvard Law professor, Jeannie Suk Gersen, for a conversation about the presidential pardon (we promise we didn’t orchestrate the timing).
Of course, with so little time remaining in the Trump presidency, it was safe to assume that we have a few more pardons in store - the question of whom will be pardoned remains to be seen. (But now we know.)
As with our state governors, the pardon is a feature that can seem wildly capricious or merciful absolution. The president has the right to pardon basically anyone - maybe even himself, although our guests assured us that would probably not pass the smell test. So what’s the idea behind granting a president with such tremendous power? I urge you to watch the video or yourself as Joyce Vance and Jeannie Suk Gersen really get into the weeds here. Not to mention, we have an extraordinary exchange with former Secretary of Homeland Security, Jeh Johnson, who successfully prosecuted someone who was recently pardoned by President Trump.
The original concept, highlighted in the Federalist papers by Alexander Hamilton, is that criminal law is harsh and can very well be applied too severely. Therefore, there may be moments that require clemency. The fear, moreover, of impeachment was meant to guard against misuse of the pardon.
What kind of pardon is Inappropriate?
The presidential pardon power is so broad that outside of impeachment and probably a self-pardon, really anything goes.
What does a good pardon look like?
During President Obama’s administration, Joyce Vance worked on reversing the racially disparate sentences on crack cocaine versus powdered cocaine by granting clemency - a reduction in the sentencing. Clemency and pardons are exercised under the same authority.
“Justice and mercy - what the pardon is supposed to do” - Joyce Vance
Professor Suk Gersen calls Trump’s pardon of Michael Fynn, Paul Manafort and Roger Stone corrupt. Or Vance calls it semi-public dangling of pardons during the Meuller investigation.
But both our guests agreed that Trump uses the law to “harm (his) enemies and reward (his) friends.”
Nixon was the only president to receive as presidential pardon - Ford said he wouldn’t do it but then he did.
Path Forward
Trump could resign and Pence could pardon him and that would be a fully effective pardon. Might ruin Pence’s political career, but would legally doable.
A self-pardon, issued by the President himself, defies logic and is unlikely to hold up. DOJ agrees with Vance here.
States are of course a different story when it comes to pardons and you can expect more action from certain state attorneys general.
Ultimately, a self-pardon would be ineffective, but family members would be fair game. President Clinton actually provided precedent for that action. There are many different species of pardon, but the power is broad.
With hindsight being what it is, we encourage you to watch the video in light of President Trump’s full list of final pardons.
ABOUT THE EVENT
As the Trump Administration comes to an end, there is a burning question we are all wondering: can the President pardon himself, and will he? An idea that has never been tested, we bring you one of the strongest legal minds and experts in this area, Joyce Vance, former U.S. Attorney and MSNBC contributor and Harvard Law professor and contributor to The New Yorker, Jeannie Suk Gersen to discuss this topic and help us full understand the practicality to this never-before-tested idea.
Joyce Vance served as the U.S. Attorney for North Alabama and was one of the first women nominated to the role of U.S. Attorney under President Obama. Her career has made her name be credited with pursuing public corruption prosecutions with integrity. Vance adopted a "smart on crime" approach to violent and recidivist crime, intending to prosecute the most significant cases facing the district so that communities would be safer. As U.S. Attorney, she was responsible for overseeing all federal criminal investigations and prosecutions in north Alabama, including matters involving civil rights, national security, cybercrime, public corruption, health care and corporate fraud, violent crime and drug trafficking.
She has gone on to join MSNBC as a contributor and frequently provides on-air commentary regarding developments in legal issues that involve the Trump.s, including the ability to self-pardon. administration.
Jeannie Suk Gersen is a professor at Harvard Law School and is known for her specialty in a large range of topics (including constitutional law, criminal law and procedure). She has written countless articles three books, one of which, At Home in the Law, was awarded the Law and Society Association's Herbert Jacob Prize for the best law and society book of the year.
In 2010, she became the first Asian American woman to receive tenure at Harvard Law School.
She is a longtime contributor to The New Yorker, focusing on legal and policy issues. She served as a law clerk to Justice David Souter on the United States Supreme Court, and to Judge Harry Edwards on the U.S. Court of Appeals for the D.C. Circuit.
