Pardons and the Presumption of Regularity

President Trump’s decision to pardon Dinesh D’Souza and his musings about pardoning others remind us once again about how transformative (in a not-good way) the Trump presidency truly is. At bottom, so much of our institutional structures in America are founded on a presumption of regularity in the executive. Not a presumption of wisdom and not a presumption of effectiveness, but in essence, a presumption of well-meaning interest in the good of the country.  

At its core, this presumption is at the heart of executive discretion. Recognizing that ex ante rulemaking can never anticipate every circumstance the country has, systematically, chosen to give the executive discretion, confident that those powers will be exercised with wisdom and not in a dictatorial way, or for the president’s personal gain. When, to cite one example, the law provides “the President, if he deems it necessary in the interest of national security or defense, may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States,” we assume that the awesome powers granted therein will be used for the good of the country and only in times of a good-faith belief in the existence of a bona-fide emergency. Yet, time and again (as with Friday’s decision to order the electric grid to purchase coal and nuclear power on “national security” grounds) this president trangresses those norms and acts in ways that can only be characterized as bad-faith invocations of national security interests.

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The pardon Trump just issued and those anticipated are yet another such instance and they remind one of how far we have come. Consider, this article on the pardon power that I wrote back in 2012. The fundamental conclusions of the paper can be easily summarized:

• The pardon power, as conceived at the nation’s founding, was a unique expression of the belief in the necessity for mercy and grace in the face of the government. It was to be used to correct injustice or, at times, to heal national wounds (think, for example, of Carter’s pardon of Vietnam-era draft evaders).
• Over time, the pardon power has atrophied and fallen into disuse. Both in absolute numbers and as a percentage, modern presidents use the power on an order of magnitude less frequently than those in the late 1800s or early 1900s.
• The principal cause of this decline and the end of presidential mercy appeared to me, at the time, to be the institutionalization of pardons in the Justice Department. Instead of presidents exercising independent judgment, they now relied on the same prosecuting institution that initiated the charges to judge whether a pardon was apt—with the natural consequence that far fewer pardons were recommended.

You may or may not disagree with this assessment. (I commend the entire article to you if you are interested in the history and theory of the pardon power.) But I find remarkable in retrospect is how deeply embedded into my conclusions was the presumption of regularity. The article readily acknowledges the possibility of abuse (the Marc Rich pardon is a paradigmatic example) but in the end concluded that an unfettered presidential power was a net benefit and that a return to first principles with the president’s personal engagement would be a welcome reinvigoration of the process. Left unstated was the assumption that the president would generally use the pardon power wisely.

How times have changed. Perhaps this pardon is deserved. I have no real way of knowing. But given the context and the author of the pardon, there really is no longer a basis for presuming the authenticity of the president’s determination. The ready assumpion of regularity has not survived reality. Perhaps we will return to that moment—but for now, the D’Souza pardon reminds us how radically times have changed.