In the dying days of his presidency, Donald Trump has enthusiastically embraced his power to issue pardons. Among the first to benefit were his former campaign manager Paul Manafort and former advisers Roger Stone and George Papadopoulos, who misled the Mueller investigation into Russian interference in the 2016 election. Others include the Blackwater military contractors who massacred unarmed civilians in Iraq, and Trump's father-in-law Charles Kushner, who was convicted of tax fraud and illegal campaign donations.
The reaction has been intense. The Blackwater pardons are "an indiscriminate drive-by [shooting] on the rule of law," says former US prosecutor Glenn Kirschner. The pardoning of Trump's close associates could amount to criminal obstruction of justice or bribery, says Laurence Tribe, a Harvard professor of constitutional law. Even Republicans have been critical: for Senator Ben Sasse of Nebraska, the pardons were "rotten to the core".
Trump is not the only president to attract such criticism. Gerald Ford controversially pardoned his predecessor, Richard Nixon, for Watergate offences. Bill Clinton pardoned exiled tax-evader Marc Rich, a long-term supporter. George H. W. Bush pardoned former defence secretary Caspar Weinberger and five others for their illegal dealings in the Reagan-era Iran-Contra scandal.
Tribe thinks presidents who criminally misuse this power should be prosecuted after they leave office. Others propose that presidents should be required to justify their pardons, or that pardons for a leader's supporters and family members should be banned. The New York Times thinks that Joe Biden should appoint a clemency board made up of legal experts to provide him with a framework for making pardons.
But there's a more basic question: what justifies a president's right to grant pardons, especially in a society that is supposed to limit arbitrary actions by rulers? How can pardons be compatible with democracy and the rule of law?
Trump's pardons have made it clear that America's power of pardon is too easy to abuse. On the other hand, Australia's Royal Prerogative of Mercy has dwindled down to a bureaucratic, legalistic measure that can rarely be used.
Pardons used to be one of the special privileges that elevated monarchs above their subjects. When delegates to the American constitutional convention of 1787 proposed giving presidents the same power, some delegates feared that future leaders were being given the powers of a monarch with the same potential for tyranny. One delegate, George Mason, argued that a president might at some future time pardon people for wrongs he instigated or avoid being called to account for his deeds.
That concern was prescient, but it did not prevail. Article 2 of the American constitution gave the president the power - limited only in cases of impeachment - to pardon people for federal offences, whether they had been found guilty or were yet to be tried. Pardoned individuals aren't declared innocent, but they do get back all their rights as citizens.
In 1788, one of the Founding Fathers, Alexander Hamilton, made adetailed argument in favour of pardons. He believed that the criminal code is sometimes too severe, and a just system needs to be able to exercise mercy. The power to pardon was best invested in the president rather than Congress because members of a group can easily shrug off responsibility or act for political reasons.
Hamilton's claim that an individual is more likely to make responsible decisions is debatable. But his insistence on the need for a means of exercising mercy is hard to dispute. Even a legal system that allows for appeals may operate too harshly in individual cases. Pardons can serve as a means for bridging the gap between justice as a moral ideal and the justice dispensed by legal institutions.
Sometimes the law is cruel because it makes no allowances for common weaknesses. During the Civil War, Abraham Lincoln granted 343 pardons, many to Union Army deserters facing execution. "If Almighty God gives a man a cowardly pair of legs," Lincoln said, "how can he help their running away with him?"
Sometimes the law is cruel because it gives individuals a harsh penalty for relatively minor offences. Among the 1324 people Barack Obama pardoned were low-level drug offenders serving long sentences as the result of the "war on drugs". Legislation to end these mandatory sentences and commute the terms of those already serving time would have been better, but efforts to pass such a law had stalled in Congress.
Sometimes justice is best served by pardoning an offender who performs a public service. Obama's pardon of Chelsea Manning, who was serving a sentence for handing secret information to WikiLeaks, is one example, and if Trump or Biden pardons Edward Snowden or Julian Assange this could be justified on similar grounds.
The second reason Hamilton offered for presidential pardons is that peace and order can sometimes be best served by pardoning rebels and insurgents. George Washington offered such a pardon to leaders of the Whiskey Rebellion, an armed uprising of people who objected to a tax on spirits. Andrew Johnson, the president who succeeded Lincoln, pardoned all fighters in the Confederate cause who were willing to swear allegiance to the United States.
Pardons can also serve the cause of justice. Lincoln pardoned most of the members of the Dakota tribe who engaged in armed rebellion in 1862. In imposing death sentences, he believed, the military tribunal had paid no attention to cultural or individual differences or the reasons for the rebellion.
Presidential pardons can also be used to restore the reputation of the dead. Clinton granted a posthumous pardon to Lt Henry O. Flipper, the first African-American cadet to graduate from West Point, who had been dishonourably discharged from the army for mishandling the accounts of an army base.
Most countries have a means for pardoning victims of unjust rulings. In Australia, the Royal Prerogative of Mercy is nominally exercised by the Queen's representative, the Governor-General, who acts on the advice of the Attorney-General. Pardons are few because a claimant must satisfy the condition of being morally and technically innocent of the offence.
In May 2012, Attorney-General Nicola Roxon informed petitioners that the Australian government would not seek a pardon for Harry "Breaker" Morant, executed for murders committed during the Boer War, given that Morant and his associates did, in fact, kill unarmed Boer prisoners.
Whether Morant and his associates should be pardoned because they didn't receive a proper trial and were prevented from lodging an appeal is debatable. The irony revealed by this case is that pardons are much more difficult to come by in a country where a monarch is head of state than in a republic with an elected president.
Trump's pardons have made it clear that America's power of pardon is too easy to abuse. On the other hand, Australia's Royal Prerogative of Mercy has dwindled down to a bureaucratic, legalistic measure that can rarely be used. Designing a system that would achieve the right balance is a subject that ought to concern Australians as well as Americans.
- Janna Thompson is an adjunct professor at La Trobe University and a frequent contributor to Inside Story.