Trump should start cranking out the pardons

Judicial Watch president Tom Fitton appeared Monday night on the Lou Dobbs show on Fox Business, and he was a deadly serious man.  He said the proper constitutional remedy to the Deep State assault on the presidency is a blanket use of the pardon power, beginning with retired Army lieutenant general Michael Flynn.  Every potential legal target of Special Counsel Robert Mueller should also be pardoned.  The president doesn't have to fire anyone.  He can simply take away legal jurisdiction through the exercise of his pardon power.

As the Supreme Court stated in 1866, in Ex parte Garland, the presidential pardon power is "unlimited."  "It extends to every offense known to the law, and may be exercised at any time after its commission."  In other words, it may be pre-emptive.  It's not just after conviction, but before any criminal prosecution has even begun.

Most people think the pardon power is for acts of clemency: pardoning criminals who were wrongfully convicted or who have paid their debt to society.  But its more important function is as a tool to serve the broader public interest.

This was the precedent set by President Washington in 1795 when he pardoned two leaders of the Whiskey Rebellion who had been condemned to death as traitors.  President Jefferson used this power to pardon all those convicted under the blatantly unconstitutional Alien and Sedition Acts.  President Ford pardoned Nixon not as an act of clemency, but to save the country from a prolonged national nightmare.  Most recently, President Carter pardoned 200,000 young Americans who had evaded the draft during the Vietnam War.  In these cases, the exercise of the pardon power was in the higher national interest, above strictly legal considerations.

The use of the pardon power is often highly unpopular and comes at a steep political cost.  President Ford was roundly condemned for pardoning Nixon, and it cost him the presidency in the 1976 election.  So it may be with President Trump, and he may well give up any hope of a second term if he uses this power. 

For all anyone knows, come November, it could cost the Republicans their majorities in Congress.  In  1974, following the Nixon pardon, Republicans lost 49 seats in the House, giving the Democrats a veto-proof two-thirds majority.  Democrats also picked up three Senate seats, giving them the 60 seats needed to overcome a filibuster.  But Ford knew what he was doing.  He said to hell with politics.  Do right by your country.

So it would be today.  What's called the Deep State is a cabal of lawyers embedded in the Justice Department and the FBI.  They are an extra-constitutional self-selected legal elite who believe they are the guardians of public virtue.  They think of themselves as a fourth branch of government, assigned the task of policing the other three.  They model themselves after the execrable J. Edgar Hoover, who used wiretaps to compromise and blackmail politicians.  This made him invulnerable, and his example is what inspires the cabal.  They want the kind of power he had.

Tom Fitton of Judicial Watch says Representative Nunes should initiate impeachment proceedings against Rosenstein, FBI director Wray, and other Justice Department employees who are in contempt of Congress.  As a matter of law, and the Constitution, he's absolutely right.  And Devin Nunes, almost alone, has attempted to fulfill his duty as a congressional overseer of the Justice Department. 

But it will never happen, because Congress has abdicated its power of impeachment, along with most other duties imposed on it by the Constitution.

Like a cunning beast of prey, Russian dictator Vladimir Putin can smell weakness, and it now emboldens him to challenge the United States in the Middle East.  He thinks President Trump has been paralyzed by his political enemies, and he wants to exploit Trump's plight at our expense.  This is why President Trump should use the pardon power as soon as possible.  It is in the highest national interest.  It sends a message to all our foreign foes.  The Constitution is not a suicide pact.  The Constitution offers the president the chance to disarm his domestic enemies and send a message of strength to those abroad who wish us ill.  The pardons can be made pursuant to his duties as commander in chief.

With every power granted by the Constitution comes a responsibility.  President Trump swore to support this Constitution.  He can do so through the use of the power the Constitution gives him.  

Donald J. Trump will not be judged by the New York Times or NBC News.  He answers only to Congress, to the voters, and to history. 

Now is one of those times when all good men must come to the aid of their country.  In a way, it pains me to say this.  But God bless President Trump for , if nothing else, his enemies.

Fritz Pettyjohn has a B.A. in political science from U.C. Berkeley, practiced law in Alaska for 44 years, and is a retired Alaska state senator.  He blogs at

Image: Gage Skidmore via Flickr.

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