Pardon – Returning to the Constitutional Intent

President Trump raised eyebrows with recent pardons and reprieves. He needled his opponents by stating that the President even has the power to pardon himself if he wanted. He went on to say that in his case there was no need because he had done nothing wrong.

President Trump Signing Pardon ( recent pardons are noteworthy. One was the posthumous pardon of Jack Johnson, former World Heavyweight Champion boxer. Johnson, an African American, was convicted in 1913 of a federal crime for taking his white girlfriend across state lines.

There was no question that the motivation for prosecution was simply because he was dating a white woman. Johnson served 10 months in prison. He died in 1946.

Johnson’s great great niece, Linda Haywood, asked President George W. Bush to grant a posthumous pardon. It never happened.

She had great hopes for a pardon during the Obama administration. She even had the support of Congress.

President Obama refused to act on the basis of a recommendation from the Justice Department. A Justice Department spokesman wrote that is is the “department’s position that the limited resources which are available to process requests for president clemency—now being submitted in record numbers—are best dedicated to requests submitted by persons who can truly benefit from a grant of the request.”

President Trump learned of the case of Jack Johnson, not from Justice Department lawyers, but from Sylvester Stallone. When the President looked into the case, he saw that this was wrong.

He righted the wrong. Contrary to the view of career lawyers in the Justice Department, Jack Johnson’s family and our nation truly benefited from the grant of this request.

Photo of Alice Johnson (Courtesy of Can-Do)President Trump’s other noteworthy use of his pardon authority was to commute the life sentence of a non-violent drug offender, Alice Johnson. She had served 21 years on conspiracy to possess cocaine and attempted possession of cocaine.

As in the case of Jack Johnson, this was not the first time a request had been made to the Office of the President. Three request were made during the Obama administration. Justice Department lawyers denied her petition. President Obama left it up to the Justice Department and never acted on the request.

Also, as in the case of Jack Johnson, it was not the Justice Department that brought the matter to the President’s attention. It was Kim Kardashian. When the President called for the record and examined the case, he gave Alice Johnson her freedom.

The power of the President to issue pardons is found in Article II of the Constitution. The President “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”

The power to pardon is the least limited power granted to the President in the Constitution. Impeachment is the only exception. That is because impeachment is a power granted to the legislative branch in Article I.

President Trump’s direct action on granting pardons and reprieves is a return to the original intent of the framers of the Constitution. Over the years, the power to grant pardons and reprieves gradually became a defacto power of unelected career employees in the Justice Department.

Justice Department lawyers do not have the power to grant a pardon, but for all practical purposes, they decided, made recommendations to the President, and the President signed the papers. President Trump put an end to that practice.

There were probably more than a few lawyers wringing their hands with angst. After all, this President had never spent a day in law school. How could he possibly be qualified to make such decisions? The answer is simple. He is qualified because the Constitution says so.

A pardon changes the status of the one receiving the pardon. In 1867, Supreme Court Justice Stephen Field wrote that the effect of a Presidential pardon on an individual, “makes him, as it were, a new man… so that in the eye of the law the offender is as innocent as if he had never committed the offence.”

The philisophical basis of the power to pardon is also the foundation of the Christian faith. In II Corinthians 5:17, Paul wrote, “Therefore if anyone is in Christ, he is a new creature; the old things passed away; behold, new things have come.” These words may have been in Justice Field’s mind when he wrote “makes him, as it were, a new man..”

In the case of Jack Johnson, President Trump righted a wrong that was over a century old. In the case of Alice Johnson, he showed compassion and grace to give her a second chance. I am glad to see President Trump putting the Constitutional human element back into pardons and reprieves.

Signature-Donald E. Cole

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