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America’s Presidential Pardon Is a Royal Mess

Former US President Donald Trump’s blatant violation of the pardon power was just one of many challenges he posed to the constitutional balance of power. US judges would do well to learn from how the United Kingdom’s courts have slowly chipped away at the British executive’s use of the royal prerogative.

LONDON – Donald Trump left his worst offenses against American democracy and the US presidency almost until the end of his single term in office, when he refused to recognize his opponent’s election victory and summoned a mob to storm the Capitol. But his final acts – amply availing himself of the presidential pardon power – were nearly as egregious. Gleefully doling out executive clemency to more than 140 people in the last 12 hours of his presidency – including to Steve Bannon, his former chief strategist turned con man – Trump, thwarted in his effort to overturn the election result, clearly reveled in this last kingly prerogative.

It is curious that presidents possess such unaccountable power at all. America’s founders rejected absolute monarchy and its trappings (such as noble titles), and yet the pardon power is descended from just such a monarchical power, the royal prerogative of mercy.

In its original form, this prerogative gave British monarchs the near-unchecked authority to pardon those convicted of crimes. Much like the presidential pardon, it did not fully exculpate the guilty by erasing their conviction, but it did save them from its worst effects – most often a death sentence. In theory, the prerogative was a benign tool to remedy injustice and highlight royal benevolence; in reality, it was always ripe for abuse.

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