The Merciful Route to Unifying America

If President Biden wants to redeem his pledge to unify America, the best thing he could do would be to retreat to Rehoboth Beach with a copy of 74 Federalist. That’s the immortal column in which Hamilton explains the Framers’ thinking in respect of the pardon. Hamilton’s point was that the Framers expected it to be exercised solely by the president, without embarrassment or hesitation, and with an abundance of the spirit of mercy or, one could say, unity.We write about this now not only because Congressman Adam Schiff is agitating for a campaign to restrict the president’s pardon power. He’s doing this amid questions of whether Mr. Biden might, in the face of a collapsing plea deal for Hunter Biden, use a pardon to save his son from a possible prison term. Not to mention the question, however far-fetched, of pardoning President Trump of charges threatening his bid for a second term.The Editor of the Sun has been notoriously liberal — meaning, conservative — on this head. He called for President Obama to pardon Secretary Clinton for mishandling documents. He defended President Clinton for pardoning his own half-brother, and Susan McDougal, who went to prison for refusing to testify against the president. We support Harding’s commutation of the sentence of socialist Eugene Victor Debs for opposing the draft. These pardons — along with the clemency granted to those who participated in the Whiskey, Fries, and Shays* rebellions in earlier years — are in keeping with the spirit Hamilton set out in 1788 in what became known as 74 Federalist. “Humanity and good policy conspire to dictate,” the future Treasury secretary wrote, “that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”Presidents who took this to heart include Jefferson, who upon taking office pardoned scores who had been convicted under the dissent-stifling Sedition Act; Ford, who pardoned his predecessor, Nixon; Carter, who granted amnesty to as many as 200,000 men who had evaded their obligation to register for the Vietnam-era draft; and Andrew Johnson, who pardoned thousands of Confederates who’d taken up arms against America.Hamilton reckoned that the “severity” of criminal law, absent generous pardon policies, “would wear a countenance too sanguinary and cruel.” Granting this power to one person, the president, would put fewer obstacles in the way of clemency. In times of “insurrection or rebellion,” Hamilton reckoned that, if Congress were kept out of it, “a welltimed offer of pardon to the insurgents or rebels” could restore “tranquility.” This is among the reasons why the Framers designed the pardon as the least fettered power granted to the president. The power is “general and unqualified,” Justice Joseph Story wrote in the early days of the Republic, “reaching from the highest to the lowest offenses,” and “no law can abridge” the executive’s “right to interpose pardon.” The Supreme Court affirmed that the pardon power is “unlimited except in cases of impeachment.”Mr. Schiff appears to have missed that Supreme Court precedent. He concedes the president’s “broad power to confer pardons,” yet seeks by law to curb clemency when it’s “designed to insulate himself, his family, and his associates from criminal investigation.” His bill would “void” any presidential “grant of a pardon to himself or herself.” Public Citizen tells us “this is a clarification of the Constitution” so “there is no amendment needed.” That’s pure sophistry, unworthy of Congress. It’s no doubt animated by the fear that Mr. Trump, as he reiterated Friday, intends to stay in the race for the White House even if he is convicted of crimes. He notes that “there’s nothing in the Constitution” to “stop me.” Meanwhile, Mr. Biden’s press secretary, Karine Jean-Pierre, when asked if he would “end up pardoning his son” Hunter, responded “no.”All this bravado over pardons looks silly in the context of our history. People were killed in the Whiskey, Fries, and Shays rebellions, not to mention the Civil War. All four uprisings rattled the foundations of the Republic. Convictions were brought in for treason. Yet President Washington, the only president to have twice carried all the states, showed us, in pardoning the Whiskey rebels, the heart of a unifying president.Washington called for granting “every degree of moderation and tenderness which the national justice, dignity, and safety may permit.” Which brings us back to Mr. Biden. The unifying move for him would be to pardon his son and Mr. Trump, on the condition the 45th president drops his bid for reelection. Then Mr. Biden could pardon himself, stand down from running in 2024, and let a new generation of Americans try its hand at unifying the country.___________* All three of the early rebellions were violent tax revolts. The Shays rebels were pardoned by Governor Hancock of Massachusetts in 1787, before the Constitution was ratified, and the Fries rebels were pardoned by President John Adams.

The Merciful Route to Unifying America

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