Osler's Razor

Late on Friday afternoon last week-- just as other news on the impeachment hearings was breaking-- President Donald Trump announced that he was pardoning two US service members and restoring the rank of a third. Some of my thought were included in a NY Times piece on the grants (you can see that here), but I've got some additional musings on this development.

Perhaps the most objectionable of the grants to some commentators (including many associated with the military) was the full pardon of Major Matthew Golsteyn of the Army's Special Forces. Golsteyn was not yet tried on charges that he had killed an unarmed civilian in Afghanistan in 2010. The charge was for premeditated murder-- the most serious charge in any criminal code. It is legal for the President to pardon someone before they are tried, of course-- most prominently, President Ford pardoned President Nixon before he was charged with a crime. 

One of the things that makes me sad is that it is another manifestation of the two-lane clemency process employed by the Trump administration. In one lane are people like Golsteyn, Sheriff Joe Arpaio, Dinesh D'Souza and others, whose case are promoted by right-wing media (most prominently, Fox News). The second lane contains the 14,000-some people who did the hard work of filing clemency petitions through the Pardon Attorney and following the rules. In that lane are elderly people seeking pardons for minor offenses and some of my clients who sold marijuana in states where it is legal. Right now, only the Fox News lane is operational. Orange barrels block the other as thousands wait.

The other is this: I do believe that, as Hamilton put it, clemency is a "benign prerogative." I think what he meant by that is that even when used badly, what clemency does is grant mercy to those we may think are unworthy. In other words, it takes nothing away from anyone as it grants liberty.

My fear is that grants like Golsteyn's will undermine the legitimacy of the idea of clemency. It is a noble thing, and ancient. But right now, it is out of balance so long as a single news outlet plays a large role in determining how it is used.