How Should President Trump Exercise His Pardon Power? | Opinion

The Constitution allocates to the president the "power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment."

This power is often misunderstood as limited to compassionate claims made by prisoners facing the death penalty or long imprisonment, and who are sick or old. The exercise of compassion is one important element of this extrajudicial power, but it is not the only one. The executive authority to pardon and commute is a central aspect of our constitutional system of checks and balances. It authorizes the president to impose a check on legislative and judicial overreaching in the federal criminal justice system.

President Donald Trump's decision to pardon General Michael Flynn is a good example of this check. Prosecutors overreached by setting a perjury trap for him, and then threatening to prosecute family members unless he pleaded guilty to a non-crime. It was a non-crime because his false answers could not be "material" to any investigation. Investigators already had conclusive proof that he met with Russian diplomats—they recorded the conversation! They asked about the conversation only in order to get him to lie about it. Congress should enact legislation outlawing such perjury traps, but they haven't. The judge presiding over the case then should have allowed the Justice Department to drop the prosecution, but he didn't.

So President Trump stepped in to check these abuses, as he is empowered to do. He did the right thing—to correct the wrong things done and not done by the other branches. The system of checks and balances worked, in the Flynn case.

Now, we will see whether it will work in other cases of legislative and judicial overreaching. Consider the general issue of excessive sentencing, and the specific issue of the so-called "trial penalty." Since I began to practice criminal law nearly 60 years ago, sentences for non-violent crimes have increased dramatically. As a colleague put it: "they simply added a zero to most sentences; what used to get one year, now gets 10; two now gets 20."

This systemic increase in sentences has enhanced the pressure on criminal defendants to plead guilty and not go to trial. Because the legislature (and the legislatively created Sentencing Commission) has authorized such harsh sentences for so many non-violent crimes, prosecutors have the power to threaten defendants with the functional equivalent of life imprisonment unless they plead guilty. If a defendant does, he can reduce the sentence by years, sometimes decades. But if he goes to trial and loses, the sword of Damocles drops on his neck.

In one case currently before President Trump, two white-collar defendants were offered seven-year sentences if they pleaded guilty. They did not believe they were, in fact guilty, so they went to trial. They lost and were sentenced to more than a 10-fold increase in time to be served. Seven of those years were for the crimes of which they were convicted. The additional 70-plus years was punishment for exercising their constitutional right to trial by jury.

Former U.S. National Security Advisor Michael Flynn
Former U.S. National Security Advisor Michael Flynn Alex Wroblewski/Getty Images

There is something very wrong with a system that produces such a disparity, but neither the courts nor the legislature have corrected this injustice. The president has the constitutional authority to do so by commuting these "trial penalties" to reasonable sentences that reflect the actual crime, rather than the additional penalty for the exercise of a constitutional right. He also has the authority to commute sentences that are simply too long by any reasonable standard of justice. Many presidents, including Presidents Trump and Obama, have exercised this power, especially in drug-related cases.

Then there are defendants who have been convicted of crimes that are no longer on the books or are no longer prosecuted. The courts are not generally empowered to reverse such anachronistic convictions, but the president is.

There are other categories of injustice, abuse and overreach that the president is authorized to correct or ameliorate by executive clemency. These include judicial, prosecutorial or police abuse. They also include special hazards to the health of imprisoned inmates that result from the current pandemic.

So when President Trump reviews the applications for executive clemency currently before him, he will be performing a critical constitutional duty: "To take Care that the Laws be faithfully executed," and that the other branches of our government have acted justly, fairly and with compassion. He is the ultimate check and balance against governmental overreaching in our imperfect criminal justice system. He should exercise his constitutional authority broadly, fairly and equally.

Alan M. Dershowitz is the Felix Frankfurter professor of law, emeritus at Harvard Law School. His new podcast, The Dershow, is accessible on Spotify, YouTube and iTunes. Twitter: @AlanDersh. Dershowitz is now representing clients seeking executive clemency, as has through his career.

The views expressed in this article are the writer's own.