Pardons are in the news, particularly Presidential pardons. Presidential pardons are nothing new, and most people apparently believe that the President’s power to pardon is unlimited. Last week, the Washington Post reported that President Trump instructed aides to “aggressively seize private land and disregard environmental rules,” as part of an apparent effort to get them to build his border wall in time for reelection. Trump has reportedly offered pardons when aides object that such directives are illegal. Trump angrily called such reports “fake news,” but a senior administration officer said that Trump was “joking” and says such things with a wink and a nod.
Could a President pardon himself? “Yes,” said Trump’s legal team in a twenty-page memo leaked last summer, which also argued that the President cannot be charged with obstruction of justice, since as the top justice official in the country, that would be charging him with obstructing himself—which apparently is not possible, although he does seem to do this to himself on a regular basis.
The politics of Presidential pardons are complex and divisive, especially during the present administration. But what intrigues me is the nature of pardoning itself, as well as its relationship to power and forgiveness. A brief discussion of the relationship of pardoning and power occurs in one of the many memorable scenes from Stephen Spielberg’s 1993 masterpiece Schindler’s List.
Oskar Schindler, played by Liam Neeson, and Amon Goeth, the most prominent Nazi in the film, played by Ralph Fiennes, are chatting on the balcony of Goeth’s villa overlooking Plaszow, the work camp he administers with random viciousness; their conversation turns toward the nature of power. Goeth notes that the Jews in the camp fear him because he has absolute power of life and death over them, but Schindler suggests that real power is something different, telling Goeth the story of an Emperor who has the power to sentence a man to death, but chooses not to do so.
Power is when we have every justification to kill, and we don’t… That’s what the Emperor said. A man steals something, he’s brought in before the Emperor, he throws himself down on the ground. He begs for mercy, he knows he’s going to die. And the Emperor… pardons him. This worthless man, he lets him go… That’s power, Amon. That is power.”
Although Goeth’s immediate response to Schindler’s story is dismissive, and although they share a laugh over the idea of “Amon the Good” pardoning indiscriminately, Schindler has planted a seed–clearly hoping that by appealing to Goeth’s hubris, the lives of a few Jews might be spared in the coming days. And Schindler’s idea does indeed have a short-lived effect on Goeth. Over the next several scenes we find Goeth “pardoning” two or three Jews in the camp for “offenses” of the sort for which Goeth has murdered in cold blood earlier in the movie. In a particularly chilling scene, Goeth practices his gesture of pardon in the mirror as he says “I pardon you.” Soon, however, Goeth returns to his randomly vicious and murderous ways.
When Goeth practices his gesture of pardon in the mirror, is he actually seeking to pardon himself? In Goeth’s imagination (and, I would add, in Donald Trump’s), a pardon is not an expression of benevolence or mercy. It rather is an expression of power—“I am so powerful that I can even step outside the boundaries of justice, real or imagined.” Pardoning as an expression of power needs pay no attention to whether the person pardoned is guilty or innocent, although the norm in our American system is for there to be an application procedure and careful review before a pardon is granted. Donald Trump has ignored these procedures, largely because in his estimation the President’s power to pardon is unlimited and absolute. As with Goeth, for him the overall appeal of pardoning undoubtedly is the power it displays, not benevolence or mercy.
What often is missed in the swirl of discussions about pardons is what a pardon does notdo. Pardoning does not imply that the person pardoned is innocent. It does not expunge the record. Pardoning saves the person pardoned from further penalties, but does not state that the person pardoned was wrongly accused or convicted. Gerald Ford pardoned Richard Nixon, not because he believed Nixon was innocent of what he was accused of, but because Ford believed the country’s “long nightmare” could not end unless the Nixon situation, for all intents and purposes, was ended. Whether a President has the power to pardon him or herself is one issue—but even claiming that he has the absolute power to do so if he so chooses is the preemptive claim of a person who either knows he’s guilty of something or is at least afraid that he is.
An interesting story in The Book of Numbers from the Jewish scriptures provides a clear distinction between pardoning and a related activity that is often mistakenly conflated with pardoning: Forgiveness. After forty years of wandering in the wilderness after their liberation from Egyptian slavery, the Israelites finally find themselves just across the Jordan River from the land that God has promised them and their ancestors since Abraham. For the umpteenth time in the past forty years, God is angry at his “chosen people” for their latest transgressions and proposes to “strike them with a pestilence and disinherit them.”
Moses, as he often does, reminds God that a merciful and loving divine being would forgive the problematic nomads just one more time. Moses’ intervention on behalf of the Israelites is effective, but only to a point. God tells Moses that
I have pardoned, according to your word; but truly, as I live . . . because all these men . . . have put Me to the test now these ten times, and have not heeded my voice, they certainly shall not see the land of which I swore to their fathers, nor shall any of those who rejected Me see it . . . Say to them . . . The carcasses of you who have murmured against Me shall fall in this wilderness, all of you who were numbered, according to your entire number, from twenty years old and above. But your little ones I will bring in, and they shall know the land which you have despised.
The divine pardon spares the Israelites from pestilence, but they are not forgiven. God’s longstanding promise to the children of Israel remains intact, but no longer applies to the current disobedient generation. A pardon lifts the punishment that justice demands, but does not wipe the slate clean.
Forgiveness is a much more radical response to wrongdoing, real or imagined. God in the Jewish scriptures is presented as often willing to pardon, less frequently willing to forgive. The most remarkable feature of Christianity, for my money, is its focus on a God of forgiveness: “Their sins I will remember no more.” Theological distinctions aside, forgiveness involves not only pardon but restoration. It also involves forgetting—those who say “I’ll forgive, but I won’t forget” are talking about pardoning, not forgiveness.
To truly forgive is something that is perhaps beyond the scope of human capacity; I would go so far as to say that to pardon is human, but to forgive is divine. And most of us have experienced true forgiveness, often unexpected and always undeserved. I can think of no better evidence for the notion that human beings contain a spark of the divine than that.