The Constitutional Right to grant ‘clemency and reprieves’ is contained in Article 2, section 2. It is limited to offenses against the US government (in other words, cannot be applied to state law convictions or acts) and cannot be applied to impeachments. The right ensconced in the Constitution could be viewed as a vestigial remnant of early English law, where the right to pardon was vested in the King. There was a time when pardons were doled out judiciously and on rare occasions – unfortunately, those times have passed. Starting with the end of the Civil War, mass clemencies have been granted (including ex-Confederate soldiers, members of the Church of Jesus Christ of Latter-Day Saints for polygamy, people convicted of dodging the Selective Service, minor drug offenses, etc). And throughout history, Presidents have granted pardons to political allies and their friends.

With all of that context, there have been some unwritten limits that Presidents have adhered to when considering pardons. The gravity of the crime plays a role. The benefits to the country plays a role – for instance pardoning a foreign national criminal in order to exchange them for US nationals imprisoned elsewhere. Commuting death penalties for mass murderers is beyond the pale.

But in the Trump era, one has to wonder whether there are any limits to how the pardon power might be used. He began his second term with a substantial mass clemency for 1,500 people either convicted or being pursued for conviction for their acts on January 6th 2021 at the US Capitol. This included people convicted of assaulting police officers. Some of the pardoned have gone on to be prosecuted for other crimes – things like soliciting a minor, possession of child sex abuse materials, and burglary. Clearly, the pardon vetting was stellar. This week, the Administration made a big show of bringing charges against someone who planted pipe bombs on Jan 6th at the HQs of the political parties. I have no doubt that had he been identified during the last administration, this man would have been pardoned as well.

The President has shown an affinity for pardoning financial fraudsters (perhaps he sees himself in them?). During his first term, he pardoned Eliyahu Weinstein, convicted of bilking $44M in a Ponzi scheme from people who thought their money (The Trump administration ironically would re-indict him on charges of defrauding people who thought their money would go for surgical masks, baby formula, and first-aid kits headed to Ukraine – sentenced to 37 yrs in prison). David Gentile was pardoned this past month, from his conviction for defrauding investors out of $1.6B – only 12 days into his seven year sentence. Marian Morgan was convicted of wire fraud and attempting to defraud the federal government for their Ponzi scheme- 33 year sentence commuted. This is the tip of the iceberg for the corporate criminals that the President has let off the hook. The message? Commit a big enough financial crime and you can get away with it.

The President also has continued the storied infamy of granting pardons to political acolytes and connections to friends. Rudy Giuliani, former Congressmen (and serial liar) George Santos, former Congressman Michael Grimm, political donor Boris Ephsteyn, and numerous “fake electors” during his 2020 campaign have been pardoned. Changpeng Zhao, the billionaire Binance founder who pled guilty to violating US anti-money laundering laws, was pardoned – but I’m sure it had nothing to do with his working extensively with the Trumps’ World Liberty stablecoin. Ross Ulbricht, founder of Silk Road (a dark web marketplace) was pardoned shortly after the inauguration, in an apparent quid-pro-quo for the Libertarian party ceasing their campaigning in battleground states. Political connections rule the day in President Trump’s decision making.

But the most disgusting (if there can be such a scale for this President) pardon yet came this past week. Juan Orlando Hernandez, a former President of Honduras, was convicted of drug trafficking (cocaine) and sentenced to 45 years in prison. President Trump has found a political ally in the current Presidential candidate from Hernandez’s political party and decided to pardon Hernandez. The scope of Hernandez’s crime – 400 tons of cocaine (4.5 billion doses) imported to the US and a $1M bribe from Joaquín “El Chapo” Guzmán. But the prosecution took place during the Biden administration, so the crimes were irrelevant. For a President so concerned about narco-terrorism that he bombs small boats off the coast off of South America, one might think that pardoning a drug kingpin would be beyond the pale. Not for this President.

And the national disgrace continues…