In the previous post, “Should pardon power be limited?” we asked you to think about these questions:

1. Should the President of the United States be allowed to offer unlimited pardons, no matter what offense?
2. What if the President is a convicted felon?
3. Why does the President have that right?
4. Should state Governors or other elected or unelected officials have the right of pardon?

We then listed President Trump’s pardons together with the convicted criminals’ names, offenses, and sentences.

By way of reminder, Article II, Section 2, Clause 1 of the Constitution states: “The President… shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

Given today’s circumstances, we asked you also to consider more specifically the unlimited right to pardon all criminals, along with the SCOTUS decision that a President cannot be prosecuted for “official actions.”

Laws are bounded by extremes, and Trump tests those boundaries.

Should a President have the unlimited right to enlist people to commit crimes by promising them immunity from prosecution and conviction?

This question has special relevance today, when the President himself is a convicted felon.

We have already seen Trump attempt to game the Constitution by invoking the Alien Enemies Act of 1798. He tries to justify deportations without trial, claiming that the United States is facing an “invasion” by foreign criminal gangs such as Venezuela’s Tren de Aragua.

The Alien Enemies Act is a wartime statute enacted in 1798, originally designed to allow the president to detain or deport non-citizens from nations with which the U.S. is at war or under threat of invasion.

Only by the widest stretch of meaning could one consider the U.S. to be “at war with” or under threat of “invasion by” a gang of criminals.

Though the Supreme Court blocked this attempt for lack of due process, it highlights this administration’s, and possibly future administrations’, attempts to bend the Constitution in ways not anticipated.

Another example of Trump’s willingness to distort and stretch the meaning of the Constitution:  His attempt to end the Constitutionally permitted birthright citizenship for children born in America of non-citizen parents by claiming that the children are not “subject to the jurisdiction” of the United States.

(This outrageous claim would mean the children could commit any crime and not be punished.)

Trump’s proclivity, if allowed, sets a precedent. He does America a service by demonstrating how far a corrupt President would go if unchecked by Congress and the Supreme Court.

Why was the President given the right of pardon?

1. Alexander Hamilton said, “Humanity and good policy demand a power of clemency in the executive, especially in seasons of insurrection or rebellion.” Are we now in a season of insurrection or rebellion?
2. To correct judicial mistakes: Courts can err. A pardon lets the President fix unjust convictions or excessive sentences when the law provides no other remedy. Have Trump’s pardon corrected judicial mistakes?
3. To promote national unity and reconciliation. In times of crisis—rebellions, civil wars, insurrections—the President might need to pardon large numbers of people to restore peace. Did Trump’s pardons come at time of rebellion, civil war or insurrection? Did they help restore national unity, reconciliation, and peace?
4. To act swiftly and decisively: A single executive could act faster and more compassionately than a board or legislature. The framers feared delay and indecision. Hamilton said, “A well-timed offer of pardon to the insurgents may restore the tranquility of the commonwealth.” Did Trump’s pardons restore tranquility?
5. To demonstrate moral judgement. The pardon power reflects trust in the president’s character and judgment. It is difficult to see the words, “moral,” “character,” and “judgement” in the same sentence as “Donald Trump” without laughing.

Most of Trump’s pardons have been given to political allies who committed crimes, some of which were in furtherance of Trump’s political agenda, and some were for personal reasons.

Consider that the President of the United States takes an oath in which he promises to “preserve, protect, and defend the Constitution of the United States.”

He has broken this oath not only by defying any reasonable interpretation of the Constitution. He also has raged against the legal foundations of Ameirca by calling called judges who rule against him, “a “so-called judge,” a “troublemaker” an “agitator,” a “radical lunatic, ” “unfair,” “unhinged,” “disgraceful,” having “Trump degrangement syndrome,” a “hater,” a “Mexican” (for a judge born in Indiana), and a “certified Trump hater.”

I have been alive for 90+ years and never have I heard anyone, let alone a President, publicly disrespect the Judiciary like Trump does. The man is a vicious hatemonger, spreading contempt for all those who do not exhibit total fealty to him — judges, the media, economists, other politicians, businesspeople, voters, vote counters, anyone.

As we have said, laws are bounded by the extremes, and Trump is an extreme case, never seen before and not anticipated by the founders.

So the question is, what shall be done to prevent his extremism from becoming the future standard?

Here are some thoughts:

1. The President’s rights would not be for a pardon, but to order a new trial during which a new judge and a jury would hear and re-evaluate the evidence given at the original trial. No lawyers. Just a reading of all the evidence presented at the trial to determine whether the decision was appropriate. 
2. Or, same as above but with new lawyers, provided by the Justice Department, plus any new evidence not presented at the previous trial(s).
3. Or, the President would be able to require a totally new trial. Start from the presumption of innocence.
4. For mass pardons in the name of unity and reconciliation, Congress would have to agree.

The goal would be to prevent amoral Presidents from creating crime syndicates that commit every sort of felony with no laws to prevent or punish them, while allowing for the preference to free a guilty person over punishing an innocent one.

Any other thoughts?

Rodger Malcolm Mitchell

Monetary Sovereignty

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