The latest move from the Democrats is a plea to restrict the president’s power to pardon. This is from an op-ed piece, by a law professor on the Coast, that the Washington Post is circulating this morning. It’s an argument that the Constitution doesn’t permit President Trump to offer “blanket” pardons, such as, say, to his own children without enumerating the crimes of which, though uncharged, he’d be clearing them.
This strikes us as illuminating the situational nature of the Democrats’ approach — in this case, an attack on individuals the Beltway seems to resent (the Trump children) dressed up as constitutional principle. And a misreading of the Founders’ intent in respect of the pardon power. Plus, it’s odd to read it just as a Democrat is poised to accede to the presidency. Mr. Biden’s interests lie in protecting the pardon.
The Founders’ intent in respect of the pardon is sketched most famously in 74 Federalist. Its author, Alexander Hamilton, opens by asserting that “the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” The Constitution confines the pardon to offenses against the United States, and the only other fetter it clamps on the pardon is that it mayn’t be used in cases of impeachment.
This suggests, we’ve long argued, that the Founders would have been disappointed in how rarely the pardon has been used over our decades as a republic. “The criminal code of every country,” Hamilton wrote in 74 Federalist, “partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
The Framers cleared the way for the broad use of the pardon by vesting it in only the president. This was because “the sense of responsibility is always strongest, in proportion as it is undivided.” So “a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.”
It would have been possible for the Founders to give the Congress a say in a pardon, the way, say, they get to advise and consent on presidential appointments. The Founders, though, didn’t want to fetter the pardon power by disbursing it among a committee. Or, as Hamilton put it, “one man appears to be a more eligible dispenser of the mercy of government, than a body of men.”
It seems the Founders were loath to fetter the pardon power even in cases of treason. The only expediency on which vesting the pardon in the President was contested, he noted, was “in relation to the crime of treason.” There was some sentiment to bringing in Congress. Hamilton himself admitted to strong reasons for doing so — one being that the “connivance” of the president could not be excluded.
Yet even that scheme met “strong objections.” Hamilton summarized it as stemming in part from the worry over a situation “when the sedition had proceeded from causes which had inflamed the resentments of the major party.” Which might become “obstinate and inexorable when policy demanded a conduct of forbearance and clemency.” Could Hamilton have been talking about today’s Democrats?
Hamilton did go on to suggest that the “principal argument for reposing the power of pardoning in this case” to the president was that in “seasons of insurrection or rebellion” a “well-timed offer of pardon” might “restore the tranquillity of the commonwealth.” Could Hamilton have foreseen the possibility that Mr. Trump’s pardon of his family might fit with Joe Biden’s call for a return to normalcy?
In any event, the Founders kept the legislature out of it and, as we read the record, opened no door for the courts to get involved, either. Presidents have pardoned siblings, vast numbers of fugitives (Vietnam-era draft dodgers), and civil war insurrectionists. It’s hard to see any reason but politics for the courts to start fettering or embarrassing the use of the pardon simply because the person fixing to use it is President Trump.
Drawing by Elliott Banfield, courtesy of the artist.