Due process afforded criminal defendants under the United States Constitution is ever evolving. In 1940, the U.S. Supreme Court ruled that confessions obtained through coercion are unreliable and not admissible at trial. In 1961, the court extended the exclusionary rule to exclude evidence obtained in violation of the Fourth Amendment (unreasonable searches and seizures). In 1966, the court held that the Fifth Amendment (self-incrimination) requires suspects in custody be given the so-called Miranda warnings before interrogation. Constitutionally tainted evidence, and the fruits thereof, cannot be used to obtain a conviction. There is a litany of additional rights afforded an accused. A prosecutor 1) must ethnically seek justice, not merely score a conviction; 2) has a duty to disclose evidence which is exculpatory or mitigates the gravity of an offense charged; 3) may not peremptorily cull a potential juror based on race or ethnicity without an articulated and legitimate independent basis. A jury panel must be selected from a demographic pool fairly representing the residents from which it is selected. On the other hand, defense counsel must use every lawful strategy and defense to secure the accused’s interests, irrespective of guilt in fact.

The presidential pardon power is applicable to federal offenses. It is not restricted by the magnitude or gravity of the harm perpetrated. Its exercise is utterly unpardonable if inimical to the rule of law and equal justice for all. It jolts the distribution of power serving as a check and balance separating the legislative, executive, and judicial branches of government. If off-kilter, the independence of the judiciary is disproportionately imperiled.

During his second term in office, President Donald Trump to date has willy-nilly granted pardons to 1) nearly everyone charged with the attack on the U.S. Capitol on Jan. 6, 2021, including 14 prominent figures from far-right groups; 2) the founder of the Silk Road dark web marketplace who facilitated the sale of illegal drugs and other illicit goods using cryptocurrency; 3) DC Metropolitan Police Department officers Andrew Zabavsky and Terence Dale Sutton Jr., involved in the death of someone they pursued in a high-speed chase for driving a moped without a helmet, and for covering up the incident; 4) 23 anti-abortion activists convicted for blockading a clinic entrance in Washington, D.C., while intimidating staff and patients; 5) former Illinois Gov. Rod Blagojevich, convicted of multiple corruption charges, including attempting to sell Barack Obama’s vacant Senate seat; 6) Republican Tennessee state Sen. Brian Kelsey, who pleaded guilty to attempting to illegally funnel money to his failed campaign for Congress; 7) Devon Archer, convicted for defrauding a Native American tribe in a $60 million bond scheme; 8) Trevor Milton, convicted of wire and securities fraud (Milton and his wife were major Trump donors, having donated more than $1.8 million to his re-election campaign); 9) three co-founders of cryptocurrency exchange BitMEX, who pleaded guilty to violating the Bank Secrecy Act; 10) Michel Fiore, convicted of seven counts relating to wire fraud for stealing $70,000 she had collected for a memorial to fallen police officers; 11) Paul Walczak, convicted of misappropriating over $10 million in employment taxes; 12) Scott Jenkins, former sheriff of Culpeper County Virginia, convicted of accepting more than $75,000 in bribes in exchange for appointing individuals as auxiliary deputies; 13) reality TV stars Todd and Julie Chrisley, convicted of several counts of fraud and tax evasion involving over $30 million.

Irrespective of the political bent of the Department of Justice, the individuals Trump pardoned enjoyed the full array of due process and procedural rights due a criminally accused. Trump, like Froggie, plucked his magic pardon twanger to make criminal responsibility vanish. The ACLU advocates constitutional grounds to augment exclusionary rules serving to exonerate defendants from the consequences of their criminal acts. Trump’s pardoning of scofflaws arguably makes him a strange bedfellow of the ACLU. Unlike the ACLU, the inappropriate, capricious, or self-serving exercise of the pardon power denigrates our liberties, public safety, and the rule of law. The ethical restraints imposed on the prosecution, the burden of proof beyond a reasonable doubt, an unbiased jury, the exclusionary rule, and the right of judicial appeal, are abundantly sufficient to remediate all but the most egregious miscarriages of justice.

Ralph Josephsohn is a longtime resident of Longmont and a semi-retired attorney.