The separation of powers, the checks and balances that constrain executive power in democracies, is the essential feature distinguishing them from autocracy , the cornerstone of the rule of law. The right of the US president to pardon and commute sentences, and second-guess the courts represents a power that dangerously crosses that divide, one that should be used with great circumspection.
Unfortunately, it is often used to reward political cronies. Never more so than with President Donald Trump’s egregious 1,500 “complete and unconditional” pardons and commutations of sentences for the mob which tried to keep him in power at the Capitol on January 6th, 2021.
Trump drew no distinction between those who had assaulted police officers – 14 were injured and one died that day – and those who “simply” broke into the Capitol. Yet even vice-president JD Vance, before being sworn in, told Fox News that violent rioters should not be pardoned. And there was no regret from the president or those freed, both spinning a false narrative of innocents caught up in a whirlwind not of their making.
The Supreme Court, packed with supporters of the new president, has already expressly affirmed president Nixon’s outrageous claim that “When the president does it, that means that it is not illegal” in ruling that Trump cannot be charged with offences arising from his presidential duties.
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“In every use of official power,” Justice Sonia Sotomayor warned in her dissent, “the President is now a king above the law.”
In pardoning the January 6th mob he incited, Trump has extended that extraordinary immunity and impunity to his political supporters, implicitly also emboldening future rebellion.
President Biden did not help by issuing pre-emptive pardons for five family members and former members of his administration. In doing so – to protect them, he said, from Trump retribution – he normalised Trump’s pardons. “I believe in the rule of law,” Biden wrote. “But these are exceptional circumstances.” The rule of law is not, however, an optional extra.
