Misused and abused: What the President’s pardon power would do to your compliance team

Enshrined in the U.S. Constitution, presidential pardon power was never intended to be a get-out-of-jail-free card for politically corrupt elected officials and personal allies to the president. Nor was it intended to be weaponized to obstruct current or future investigations, prosecutions, or to annihilate the nation’s entire justice system.

While some have highlighted the frequency and number of presidential pardons, numerical figures are smoke and mirrors. From administration to administration, historical and continued misuse and abuse of presidential pardon power lie in who is being pardoned, and why — not how many pardons have been granted. In fact, with more than 200,000 individuals in federal prison, there’s an argument to be made that presidential pardon power is not used often enough.

For purposes of this column, the question I muse upon is this: If a president of a corporation had such an unchecked level of pardon power, what overall impact would that potentially have on the organization’s ethics and compliance program and workplace culture?

In any organization, three key things never fail to erode the effectiveness, trust, and accountability of any system of justice: Money, power and greed. However, certain types of authority equally can erode the effectiveness, trust, and accountability of any system of justice, as described below:

Ego-driven authority

Every human being is selfish, to a degree. Healthy selfishness is necessary for taking care of our own physical and mental well-being. However, to borrow from the teachings of the Dalai Lama, “foolish selfish” should not be confused with “wise selfish.” The former means pursuing self-interests in a “narrow, shortsighted way,” while the latter means “taking a broader view and recognizing that our own long-term individual interest lies in the welfare of everyone.”

Relating to presidential pardon power, foolish selfish could take a variety of forms, such as granting pardons to criminals in exchange for bribery (e.g., lobbyists); granting pardons to criminals simply to serve a deregulatory agenda in favor of a particular industry (e.g., cryptocurrency); and/or granting pardons to criminals as a spiteful tactic (examples cited below).

In a toxic workplace culture, foolish selfishness could take the form of favoritism. For example, the legal and compliance team discovers illegal conduct, but the only person whose job is saved is the president’s relative. Foolish selfishness in an organization also could feed off the logic that bribery is a cost of doing business, even if it means causing harm and destruction, and that it’s better to ask for forgiveness than permission.

Psychologically abusive authority

The term “psychological projection” in the field of psychology describes a defense mechanism people use by projecting their own feelings or emotions onto someone else. For example, Trump has implied that the numerous pardons he has granted reflect his own anger over the indictments he faced under the Biden administration.

Consider the following examples:

• Former Honduran President Juan Orlando Hernández had been sentenced to 45 years in prison for abusing his authority to facilitate the importation of 400 tons of cocaine into the United States. The U.S. Department of Justice (DOJ) called it “one of the largest and most violent drug trafficking conspiracies in the world.” In a letter to “His Excellency Donald J. Trump,” Hernández argued that he “suffered political persecution targeted by the Biden-Harris administration, not for any wrongdoing but for political reasons.” This prompted Trump to respond that Hernández’s prosecution was a “Biden administration set-up.”
• Ross Ulbricht, the mastermind behind the darknet online market, Silk Road, was serving two life sentences without the possibility of parole for multiple charges, including drug trafficking and money laundering. “The scum who convicted [Ulbricht] were the same lunatics who were involved in the modern-day weaponization of government against me,” Trump stated in a Truth Social post.
• Trevor Milton, former CEO of electric truck maker Nikola, was sentenced in 2023 to four years in prison for securities and wire fraud. Of Milton’s pardon, Trump reasoned, “They say the thing that he did wrong was he was one of the first people that supported a gentleman named Donald Trump for president.”

Examples of psychological projection in a compliance program or within an organization, generally, could be an executive or supervisor who self-projects one’s personal flaws or insecurities onto others. This could show itself in the form of micromanagement and/or criticism—for example, referring to employees as unintelligent, incompetent, incapable, or lazy.

In any organization, psychologically abusive authority would be extremely detrimental to workplace culture and the effectiveness of an ethics and compliance program. When others’ knowledge, skills, and leadership qualities are shuttered, growth is hindered, while fear of losing one’s job grows. Conflict and division continue to escalate.

Narcissistic/sociopathic/solipsism authority

It is inherently impossible for a narcissist, sociopath, or solipsist in a position of authority to align with “wise selfish” interests. In worst-case scenarios, conflict and division under this type of authority become so polarized that violence erupts, as demonstrated by the Capitol riot of Jan. 6, 2021.

Calling the rioters “political prisoners” who were “ushered in” to the Capitol by Capitol police, Trump granted sweeping clemency for the estimated 2,000 people involved. Beyond lives lost, the riot caused an estimated $2.7 billion in damages, according to a February 2023 report to Congress by the U.S. Government Accountability Office.

Compliance reflections

If justice was the compass of a president’s pardon power, it would be used to right the wrongs of an imperfect criminal justice system. Likewise, if values and morals were the compass of a president of a corporation, such authority would be used to incentivize ethical behavior and hold those to account when misconduct occurs.

Conversely, imagine a new president comes into an organization and begins by removing all resources and dismantling every business unit, including the compliance program that the company just poured hundreds of millions of dollars into. As the chief compliance officer or chief legal officer, imagine spending years and tens of millions of dollars conducting an internal investigation, finding evidence of illegal activity, only to have the illicit conduct wiped clean by the writing of a personal check to the president, while investors and other victims continue to suffer the consequences.

Imagine a president who normalizes inequality, hate and discrimination. Imagine conflict and division become so tense that it erupts into workplace violence, while the president sits back in the C-suite watching it all unfold.

The moral of the story is this: An effective system of checks and balances is critical to the fundamental workings of a healthy democracy. Limiting pardon power and holding executives accountable when they misuse and abuse their power is not about needing to amend the Constitution. Fundamentally, it’s about saving and strengthening what this nation stands upon—“life, liberty, and the pursuit of happiness.”