Would Pardoning the January 6 Rioters Be Heresy?

A new profusion of headlines erupted after the CNN Town Hall about President Trump’s vow to pardon the January 6 protesters. It’s a timely moment, we say, to revisit the question of what the Framers intended by granting the pardon power to solely the president and allowing him to use it even in cases of treason and insurrection. And even in cases where the president himself might be “conniving,” or motivated by self-interest. What President Trump vowed was to “pardon many” — though not all — of those involved in the storming of the Capitol. It would not be the first time the pardon power was used in an insurrection and rebellion. The Framers intended it not only for petty matters, but for even major crimes against the country. Rebels themselves against George III, they grasped that the pardon could be used even for those who took up arms against the Republic. In 74 Federalist, one of the essays written to sell the Constitution in the ratification debate in New York, Alexander Hamilton called treason “a crime leveled at the immediate being of the society,” and considered the argument that its seriousness should require pardon via legislature, not the whim of a “Chief Magistrate,” where “the supposition of the connivance” ought “not to be entirely excluded.” They were not Pollyannas in wigs. Hamilton, though, rejected an arrangement that would assign the power to pardon treason to lawmakers, reasoning that “when the sedition had proceeded from causes which had inflamed the resentments of the major party,” Congress could be motivated by cruelty rather than clemency. He reasoned that a “single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against punishment.”It falls to the president, then, vulnerable to connivance but capable of prudence, to exercise a power that Hamilton writes “should be as little as possible fettered or embarrassed” due to its “benign” nature. As Hamilton puts it, “in seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”Well put, we say. The Department of Justice certainly sees a season of insurrection. More than 1,000 persons have been charged for January 6, and some for the crime of seditious conspiracy, which the liberal lion Laurence Tribe calls “treason’s sibling.” In a memo encouraging that the book be thrown at those charged with seditious conspiracy, the DOJ avers that they “were prepared to fight. Not for their country, but against it.”We mark the history of the crime of sedition and the power to pardon precisely because we disagree with President Trump’s sentiment that January 6 was a “beautiful day.” It was a terrible one, and Mr. Trump himself might yet be charged with the equivalence of what Hamilton called “connivance.” Yet the Framers risked giving the president that power because they worried not only about seasons of sedition but also of healing.President Washington praised the pardon and what he called “tenderness.” He pardoned the Whiskey insurgents in Pennsylvania. Governor Hancock pardoned Daniel Shays. President John Adams pardoned the Fries rebels. President Lincoln pardoned thousands of Confederates. If, however unlikely, Mr. Trump is reelected, the power of the pardon would be his alone. The Founders grasped that he might use it even to cover his own connivance.________________Correction: Daniel Shays was pardoned by Governor Hancock of Massachusetts. An earlier edition misidentified who had pardoned him.

Would Pardoning the January 6 Rioters Be Heresy?

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