The piece reprinted below is the first part of Bernadette Meyler’s contribution to a Symposium published by the Stanford Law Review on her book Theaters of Pardoning. It is as cogent a guide to understanding President Trump’s pardoning practices, and how they differ from those of his predecessors, as anything else we have seen. If, as Prof. Meyler argues, the message sent by Trump’s pardons is “the rejection of law,” it would be ironic (though entirely welcome) if they prompted Congress to reroute into the legal system much of the business heretofore committed exclusively to presidential pardoning, notably relief from the collateral consequences of a federal conviction. Then presidents could pardon to their heart’s delight, without worrying about the inherent unfairness of their actions.

“Trump’s Theater of Pardoning”

by Bernadette Meyler

Introduction

In many ways, President Trump has returned to a performance of pardoning more familiar to early modern England than to contemporary America. Largely eschewing bureaucratic processes, Trump has taken advantage of the political theater that pardoning can provide. Like some of the real-life and fictional kings who appear in my book, Theaters of Pardoning, Trump has also called law and legal regimes into question through his pardons, and, in doing so, asserted his own impunity from law. Ignoring the common law restrictions that had accreted around pardoning, Trump has chosen to interpret his power as absolute, unfettered by norms like refraining from judging in one’s own case and forgiving but not forgetting. And this is only the story of Trump’s formal pardons. As Kenji Yoshino’s essay in this Symposium elaborates, Trump’s numerous revisions of history represent even more pervasive efforts at enacting amnesty and oblivion.

1. Pardoning as Political Theater

Within Anglo-American history, pardoning has adopted two contrasting forms: one routine and bureaucratic, happening without fanfare, and the other dramatic and subject to popular critique, acclaim, and discussion.[1] Several factors distinguish the two varieties of pardoning, including the process by which a decision to pardon is made, the prominence of the pardoner as a figure within the pardon, and the public reception of the pardon. During the past century, the bureaucratic pardon in America has come to be associated on the federal level with the Office of the Pardon Attorney, which has reviewed pardon applications since the late nineteenth century.[2] In recent decades, presidents have overwhelmingly relied on the recommendations of the Office in determining whether or not to grant pardons.[3]

Not so with Donald Trump. Instead, President Trump has revitalized the theatrical version of pardoning that had seemed to atrophy under his predecessors. As Robert Weisberg observes in his essay for this Symposium, many have noted this theatricality in passing, and, in the words of the Los Angeles Times editorial board, “It’s as if he were still starring on a reality TV show that ended every week with a climactic ‘You’re pardoned!’”[4] It is instructive, however, to return to early modernity—including, as Peter Brooks’s contribution to this Symposium demonstrates, European as well as English contexts—to understand the characteristics and significance of theatrical pardoning.[5] Within that context, pardoning represented “one of the marks of sovereignty,” or a supreme power above the law, and often served to aggrandize the majesty of the King rather than simply omitting punishment for an offender.[6] Oftentimes, the pardon wasn’t deserved; the recipient had not reformed or repented, and the pardon, whether taking place on the political or theatrical stage, served not justice but the plot.[7] The timing of the pardon was also crucial; in plays, and sometimes in life, it arrived unexpectedly to shift the scene from tragedy to comedy.[8] And the theater involved was sometimes of the page rather than the stage.[9] Finally, the impact of the performance was not localized with the event but reverberated long afterwards through controversy among the audience and citizenry.[10]

President Trump’s pardons revive many of these elements. While he has pardoned the fewest people of any recent president during his first three years in office, public discussion of and controversy over his pardons have outstripped those of any modern president.[11] Rather than continuing in the vein of bureaucratic pardoning produced by the work of the Office of the Pardon Attorney, Trump has instead appeared to select the vast majority of pardon recipients because of their celebrity, his personal connection with them, political ties, or the nature of the law under which they were convicted.[12] As Robert Weisberg elaborates upon the aesthetics of these pardons, Trump has extended his status “as emperor of his shows” on reality TV, where he “made subjective choices of winners and losers,” to his role as a presidential “disruptor of rules and norms of government,” through, among other devices, pardoning.[13] In all of these pardons, Trump himself has been front and center and the pardon has served to aggrandize his own power.

Comparing the textual form of President Trump’s pardons with those of President Obama visually demonstrates the prominence of Trump and his own power within his clemency grants. President Obama generally pardoned multiple people at a time, prefacing the enumeration of their names with a statement of the processes that led to these pardons, and delegated the power to sign specific clemency grants to the Pardon Attorney.[14] By contrast, Trump has announced most of his pardons individually and emphasized his own actions by placing his name in enormous bold letters at the beginning of the document then specifically referring to his constitutional power.[15] In this case, the document furnishes a striking performance of Trump’s exercise of sovereignty through pardoning.

In the aftermath of pardoning, Trump has also integrated pardon recipients into his own public performance, highlighting the significance of the pardon as prospective and legal rather than retrospective and pertaining to culpability. Most recently, he staged an appearance of the military officers he had pardoned of war crimes at his own fundraising event.[16]

President Trump’s performance of pardoning has exalted himself over both pardon recipients and the rule of law. The theatrical foregrounding of pardoning within Trump’s regime stages pardoning as a personal and sovereign decision rather than an outcome of routine or bureaucratic processes. The result is an emphasis on Trump himself and his decisions about what is or is not properly sanctioned. The visibility of the theatrical pardon conveys a message, and that message is, as the following Part discusses, the rejection of law.

1. Pardoning as a Rejection of Law

Continued here.

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[1] See Bernadette Meyler, Theaters of Pardoning 3 (2019); see also Jim Phillips, The Operation of the Royal Pardon in Nova Scotia, 1749-1815, 42 U. Toronto L.J. 401, 414-21 (1992) (emphasizing the theatrical aspects of the pardon process in Nova Scotia and their political importance in contrast with earlier arguments for the exclusively legal and bureaucratic functions of pardoning).

[2] For a discussion of the history of the Office of the Pardon Attorney, see Jeffrey Crouch, The Presidential Pardon Power 21-23 (2009). Rachel Barkow has associated that office with an endorsement of administrative procedures over the President’s independent power to exercise mercy, arguing that “[t]hose attacking clemency are . . . using key administrative law concepts to frame their critiques.” Rachel E. Barkow, Essay, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv. L. Rev. 1332, 1350 (2008).

[3] Crouch, supra note 2, at 21.

[4] Editorial, Trump Is Politicizing (and Personalizing) the Pardon Process, L.A. Times (May 18, 2019, 3:10 AM), https://perma.cc/8V8T-7FS4; see also Robert Weisberg, The Drama of the Pardon, the Aesthetics of Governing and Judging, 72 Stan. L. Rev. Online 80 (2020).

[5] Peter Brooks, The Ends of Pardoning, 72 Stan. L. Rev. Online 73 (2020).

[6]  Meyler, supra note 1, at 82-84, 262-67.

[7] See id. at 16, 36-43.

[8] Id. at 20-25. In Peter Brooks’s words, the “moment of pardoning” in the final act of Pierre Corneille’s Cinna, ou la clémence, “irrupts into the play as a kind of gratuitous gesture of the sovereign.” Brooks, supra note 5, at 76.

[9] See, for example, Michel Foucault’s mention of the letter of pardon, discussed in Meyler, supra note 1, at 15. When researching images for the cover of my book, I realized how few artistic renderings of pardon scenes exist from even the most popular Shakespeare plays. This may reflect the fact that the pardon itself is not as visually arresting as the events leading up to it or the pardon’s reception and aftermath.

[10] Meyler, supra note 1, at 6-13. As Robert Weisberg describes this phenomenon, in his essay for this Symposium, “[t]he pardons are anticlimaxes that disrupt the usual expectations.” Weisberg, supra note 4, at 83.

[11] Although President Obama commuted many sentences, primarily in drug cases, he did not grant that many outright pardons, fitting within the trend of diminishing presidential pardons. See Margaret Colgate Love, Obama’s Clemency Legacy: An Assessment, 29 Fed. Sent. R. 271, 272 (2017) (“The 142 pardons granted in the final weeks of his term, more than twice the total number granted in the previous seven-plus years, enabled Obama to avoid being labeled the stingiest full-term president in history.”). Trump has been even more sparing of his pardon power if one looks numerically at the tally. As of February 21, 2020, he has granted a total of twenty-five pardons. Pardons Granted by President Donald Trump, U.S. Dep’t of Justice, https://perma.cc/QXW8-CKBE (last updated Feb. 19, 2020). At the same time, media attention has focused extensively on his use of the pardon power, already resulting in over 100 articles and op-eds in mainstream media by my count. Jeffrey Crouch has even credited Trump with “single-handedly reinvigorat[ing] the clemency power” due to the prominence of his pardons. Jeffrey Crouch, President Donald J. Trump and the Clemency Power: Is Claiming “Unfair” Treatment for Pardon Recipients the New “Fake News”?, in Presidential Leadership and the Trump Presidency: Executive Power and Democratic Government 91, 91 (Charles M. Lamb & Jacob R. Neiheisel eds., 2020).

[12] For articles suggesting these motivations, see Crouch, supra note 11, at 91-92; Kevin Liptak, Trump’s Pardons Appear Prompted by TV, Friends and Politics, CNN (May 21, 2019, 7:53 AM ET), https://perma.cc/FR3Z-GGQ5.

[13] Weisberg, supra note 4, at 80.

[14] See, e.g., Exec. Office of the President, Executive Grant of Clemency (Jan. 17, 2017) https://perma.cc/7PQG-FANA (“After considering the applications for executive clemency of the following named persons and a letter from the Department of Justice recommending executive clemency in each case, I hereby grant full and unconditional pardons to the following named persons for those offenses against the United States described in each such recommendation . . . .”).

[15] Exec. Office of the President, Executive Grant of Clemency of Joseph M. Arpaio (Aug. 25, 2017), https://perma.cc/L9CA-6TJ6 (“Donald J. Trump, President of the United States of America, To all to whom these presents shall come, greeting: Be it known that this day, I, Donald J. Trump, President of the United States, pursuant to my powers under Article II, section 2, clause 1 of the Constitution, have granted unto . . . .”).

[16] Maggie Haberman, Trump Brings 2 Officers He Cleared of War Crimes Onstage at Fund-Raiser, N.Y. Times (Dec. 8, 2019), https://perma.cc/B5PX-TSVY.