How the Recent Election Will Affect the Criminal Justice System: An Examination of the Presidential Pardon

With the recent election of Former President Trump, there are growing questions of how he will use the presidential pardon on January 6th protests that he has promised to do so for. According to a recent NPR article, “The president-elect has said on the campaign trail and social media that one of the first acts of his second term would be to free hundreds of people convicted of attacking the U.S. Capitol on Jan. 6, 2021” [1]. This would have major implications resulting in many people not getting off without a full sentence. The use of the presidential pardon during the upcoming administration will have massive implications.

Although many people have called this into question, and even President Trump has acknowledged that he may not pardon all the protestors. Yet he could if he wanted to as “According to legal scholar Wehle, the Constitution gives the President the power to grant reprieves and pardons, and it puts no express limits on a pardon” [2]. This means that President Trump will likely be able to pardon anyone who aligns with his interests, insofar as he is not concerned that there will be massive backlash or that they did something beyond justification. 

Even if President Trump were to decide that he was only going to pardon some of the protestors, some believe this would create a dangerous precedent when it comes to future attacks on elections. According to legal experts in a recent Guardian article, “If Trump does issue the pardons, it could indicate to many of his supporters that there was nothing illegal about the riot to prevent the peaceful transfer of power and would undermine the US constitution” [3]. Creating this precedent would undermine the stability of future elections.

Furthermore, this also would result in future elections creating legal blind spots for the winner’s supporters. This already exists insofar as some of Trump’s supporters, said they “waited patiently for this day,” referring to Trump’s election, implying that the justice served to them was decided in the ballot box rather than by a jury of their peers [4]. A future where the presidential pardon’s power becomes compromised as a tool of giving impunity to the president and their supporters.

The recent ruling has also created a potential loophole where the president could use the pardon without facing any inquiry or prosecution. Justice Sonia Sotomayor writes about this in her dissenting opinion: “Takes a bribe in exchange for a pardon? Immune” [5]. This implies that based on Trump’s current willingness to give pardons to those that he aligns with, it creates the scenario where President Trump could take a bribe from someone, and pardon them without fear of being investigated. A recent article from the Independent indicates that “Disgraced politicians, January 6 rioters, and reality TV celebrities have already begun clamoring for a Trump pardon” [5]. There could be an expansive use of the pardon early into the next term of Trump’s presidency on those who are friendly to the president.

The modern use of the presidential pardon has strayed significantly from its original purpose. In Federalist No. 74, Alexander Hamilton emphasizes that “humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed” [7]. He argues that the pardon power was intended as a tool for justice, offering relief from the harshness of a severe criminal code when warranted by”'unfortunate guilt” [8]. However, President Trump's intention to pardon individuals based on their alignment with his interests undermines this principle. Such use conflicts with the pardon’s original goal of tempering justice with mercy and threatens to politicize a power designed to serve impartial equity.

In sum, the potential use of pardons for January 6th protestors carries profound implications for the integrity and future of the presidential power. Such actions would not only redefine the boundaries of this constitutional authority but also risk eroding public trust in its purpose as a tool for justice and mercy. Whether this power is wielded responsibly or becomes a mechanism for advancing personal or political agendas will shape how future generations perceive and evaluate the presidency’s commitment to upholding the rule of law.

Sources:

1. Trump v. United States, 603 U.S, No. 23–939  (2024) (Sotomeyer, S, dissenting).
2. James Liddell, Everyone who has already asked Trump for a pardon, 15:19 GMT, November 24 2024, https://www.independent.co.uk/news/world/americas/us-politics/trump-presidential-pardon-joe-exotic-proud-boys-b2650691.html.
3. The Federalist No. 74, at 456 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 
4. Id. 
5. Id.
6. Id. 
7. Id. 
8. Id.