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The Trump administration’s campaign of mass murder in the Caribbean should draw our attention to the president’s pardon powers, for two reasons.
The first and easiest one is the matter of hypocrisy or what we might call, more precisely, revealed priorities. The president says his campaign of simply murdering ships full of people that he claims are probably smugglers is part of an antidrug project. There are several problems with that: One is that it asks us to take at their words such men as Donald Trump, J.D. Vance, and Pete Hegseth, a collection of habitual liars who embrace politically convenient dishonesty as a kind of virtue; another is that the president frequently cites fentanyl deaths while murdering citizens of Venezuela, which produces no fentanyl; another is that it is not clear that these boats are involved in any kind of illegal activity at all or that, if they are, this activity involves the United States in any way, inasmuch as many of these boats do not seem to have been U.S.-bound. Yet another problem is the relevant fact, cited by my friend Andy McCarthy, himself a prominent former federal prosecutor of high-profile terrorism cases, that U.S. law does not provide for summary execution of drug suspects or classify drug smuggling as an act of war. Closing out the list is the fact that the president has just used his pardon power to liberate the former president of Honduras, Juan Orlando Hernández, one of the most significant drug smugglers of our time, who was convicted of bringing some 500 tons of cocaine into the United States. Hernández is a political ally of the Trump administration, one who presents himself as a bulwark against the “radical left.”
So, there’s the revealed preference: 500 tons of cocaine is nothing if you are a Trump ally; imaginary fentanyl is a death sentence if you are a seafaring Venezuelan who can be blown to bits for the sake of political theater.
Trump’s cynical abuse of the pardon power to reward allies or simply to enrich himself and his family is obviously corrupt, which is hardly news. But as Lord Acton knew, absolute power does not corrupt only those who wield it: It “corrupts absolutely” those who are adjacent to it, who are servants of that power. It is difficult to imagine that figures such as Pete Hegseth would be doing what they are doing—“at best, a war crime,” McCarthy writes, but more properly regarded as plain murder “under circumstances in which the boat operators pose no military threat to the United States, and given that narcotics trafficking is defined in federal law as a crime rather than as terrorist activity, much less an act of war”—without the promise of a pardon should it come to that. Thanks to Chief Justice John Roberts, President Trump has reason to believe that he is acting with a legal “immunity” found nowhere in the text of the Constitution or U.S. law, and figures such as Hegseth—appreciating the precedent of the January 6 rioters and others involved in the attempted coup d’etat of 2021—may be confident that they can break the law in the service of Donald Trump’s homicidal whimsy without facing legal consequences short of being extradited to a face trial abroad.
Congress lately cannot manage to perform even its most basic functions, and so this is not exactly a ripe time for a constitutional amendment. But we should begin the work of converting the president’s unilateral pardon power into something less corrupting, for example by requiring that pardons be ratified by a two-thirds majority vote in the Senate—even a simple majority would be an improvement.
Trump once joked that he could simply murder strangers in public and pay no political price from his supporters, and he has decided to test that proposition on the seas rather than on Fifth Avenue. The United States is not a party to the Rome Statute and does not recognize the authority of the war crime tribunal in the Hague over Americans. It would be less than perfectly desirable to see Hegseth extradited to Venezuela for trial on war crimes, enticing as the idea might be.
I have written for years that the matter of moral character in public officials is not only a question of metaphysical niceties—investing power in the hands of such men as Donald Trump and Pete Hegseth invites real-world problems that have to be dealt with in the here and now and in the realm of politics rather than in the realm of philosophy. Trump’s lawlessness is not a theoretical crisis waiting for the next election to be made manifest—the crisis is upon us. The only thing we can be sure of is that such manful advocates of the constitutional order as Sens. Ted Cruz, Tom Cotton, and John Thune have grown too accustomed to life on their knees to stand up for themselves, for the country, or for anything.
And there no presidential pardon can put off the judgment that awaits them.
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