When my mother was dying of lung cancer, we lay together in bed late one night after the initial wave of morphine had washed over her, loosening her inhibitions. “I know you think my father committed suicide,” she began. Her father had died in June 1929. With his death and the stock market crash just months later, my mother, her sister, and their mother lost everything but their pride. “But he didn’t kill himself. He died of a burst appendix, just as I always told you.” She paused. She looked into my eyes. “He never really recovered from prison, not his health.”
He was in prison? For what?
My grandfather Henry, after whom I’m named, was convicted of grand larceny. At the time, in the early 1920s, he was a business broker and a signature was forged on a note belonging to one of his investors.
“But he was pardoned,” she whispered, “he didn’t really do it. He was pardoned.”
My mother told me this in May 1998. She died weeks later, almost taking her secret with her. Six years later, after my father died, I was cleaning out their house in Florida. Inside a small metal lockbox, I found the metal plates announcing my grandparents’ engagement and wedding, a swatch of fabric from a gown my grandmother was supposed to wear to President Wilson’s inaugural ball, and a letter from one of my grandfather’s employees admitting that he had forged the signature on the note.
It took me until 2016 to finally research her secret. My grandfather was sentenced to 2-5 years in Sing Sing Prison in July 1922 after a trial. Although he was eligible for early release in November 1923, he was denied parole because of a New York City crime wave.
On May 26, 1925, Governor Al Smith signed a pardon for my grandfather. From the documents it is unclear whether the pardon was issued while he was still incarcerated or whether the pardon was issued after he came home.
This is what I share with Michael Flynn and if rumors pan out, perhaps with the entire Trump family, including Ivanka: a pardon.
Article II of the U.S. Constitution gives the President the power “to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This authority only extends to federal criminal penalties and does not include federal civil or state offenses.
Pardons can be granted any time after the commission of an offense, either before legal proceedings have begun, during their pendency, or after conviction and judgment. Presidents have used the pardon power broadly. President Thomas Jefferson, our third president, pardoned all those convicted of the Alien and Sedition Acts. Presidents Lincoln and Johnson granted amnesty to anyone who helped the Confederacy so long as they pledged allegiance to the United States. President Ford pardoned former President Nixon. President Carter extended amnesty to Viet Nam Era draft resisters. None of these presidential pardons protected the pardoning presidents from possible embarrassment or criminal liability.
President George H. W. Bush broke the norm. He granted full pardons to several high-ranking officials who had either pleaded guilty, been convicted, or faced trial for having made false statements to Congress during its investigation of the Iran-Contra affair. Those pardons might have silenced individuals who had information as to whether President Bush played any role in that illegal scandal. And President Clinton further eroded the norms surrounding pardons by granting one to his half-brother Roger Clinton, Jr. and another to the estranged husband, Mark Rich, of a very prominent and generous campaign donor, Denise Rich.
And now there is Donald J. Trump, trashing presidential norms since his inauguration speech, his first official act. Ordinarily, Office of the Pardon Attorney in the Department of Justice reviews pardon and commutation requests. Trump ignored this Office and has arbitrarily granted pardons without principles. He pardoned right wing iconic martyrs: Scooter Libby, Sheriff Joe Arpaio, and Dinesh D’Souza. He pardoned Bernard Kerik, former New York City Police Commissioner under then Mayor Rudy Guiliani and later one of his business associates. His pardon of Michael Flynn, whose actions precipitated the Mueller investigation and impeachment, is clearly self-serving. As is his commutation of Roger Stone’s sentence. And with rumors flying that he is considering pardoning his children, and perhaps himself, if that is even feasible, the use of the presidential pardon takes on a sinister, corruptive tone, a way to use exclusive presidential power to protect his family and himself. This underlying corruption of the pardon power was further revealed when Chief Judge Beryl A. Howell issued a highly redacted order suggesting that counsel for someone in custody was negotiating with someone in the Office of Legal Counsel over a pardon in exchange for a significant political campaign contribution.
Ordinarily, there are standards for granting a presidential pardon. These include post-conviction conduct, character, and reputation; seriousness and relative recentness of the offense; acceptance of responsibility, remorse and atonement; need for relief; and official recommendations and reports. In Trump’s world, standards are irrelevant.
Upon issuance of a pardon all basic civil rights are restored: the right to vote, serve on juries, and the right to be licensed in certain professions.
Earlier interpretations of the pardon power suggested that the recipient of a pardon is returned to innocence. However, a 1915 Supreme Court decision rebuked this interpretation. Accepting a pardon is a confession of guilt. When my grandfather accepted Governor Smith’s pardon, he acknowledged that although his employee had forged the signature, he was ultimately responsible as his employer. However, he deserved clemency under the circumstances.
Mike Flynn legally has acknowledged he is guilty of lying to the FBI. And if Ivanka and the president himself are pardoned, forever in our history, they will be remembered to be guilty of crimes against the United States of America.