Pardon?

When presidents intervene in the judicial process

George Washington pardoned no one in his first term. Possibly the first president didn't want to set an example of excessive leniency. More likely the shutout reflected the fact that presidents issue pardons only in cases of federal crimes, and Congress required time write the federal criminal code. There were few people for Washington to pardon in his first term even if he had wanted to.

In his second term he pardoned 16 people. Of these the most conspicuous were two men convicted of treason in the Whiskey Rebellion, a militant refusal to pay the federal excise tax on distilled liquor. Washington explained that his pardon was an extension of the amnesty offered by his commissioners to the rebels to get them to lay down their arms.

This use of the pardon power — to end rebellions — had been cited by Alexander Hamilton in Federalist 74 as a principal argument in favor of the power. “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,” Hamilton wrote.

Presidents after Washington issued many more pardons than he did, for a variety of reasons. Thomas Jefferson pardoned editors convicted under the Sedition Act of 1798. Andrew Jackson pardoned George Wilson, who had been sentenced to death for robbing the mail. Jackson thought the sentence excessive. Wilson refused the pardon. This nullified it, as the Supreme Court ruled that a pardon has to be accepted to take effect.

Abraham Lincoln commuted the death sentences of more than 250 Dakota Indians convicted by a military tribunal after an outbreak of violence during the Civil War. Lincoln allowed the execution of 38 Indians who had been convicted not merely of resisting federal authority but of murder or rape.

As the Lincoln example demonstrated, the pardoning power was construed to extend beyond simple pardons. Presidents found additional ways to intervene in the judicial process. Most conspicuous and controversial in the first century of America's independent existence was the amnesty granted by Andrew Johnson to thousands of former Confederates. During the Civil War, treason was often alleged against Confederate soldiers and civilian officials. After the war, many in the North anticipated treason convictions of at least the leaders of the rebellion. In fact none of them were even brought to trial.

Partly this reflected concern on the part of Northern prosecutors about their ability to secure convictions. Treason under American law consists in levying war against the United States, and Lincoln had insisted that armed secession was rebellion rather than war. Partly it reflected the prestige of Ulysses Grant, who in accepting the surrender of Robert E. Lee’s Army of Northern Virginia promised that Lee and his men would not be molested if they caused no further trouble. Finally, it reflected Andrew Johnson's short-circuiting of the judicial process by the amnesty he declared for leading Confederates.

Johnson's action was the first use of the presidential pardoning power that provoked widespread controversy. Johnson's enemies among the Radical Republicans had reason enough to dislike him. Denying them the satisfaction of seeing Jefferson Davis and Robert E. Lee punished for the damage they'd done the Union added to the Radicals’ animus.

Yet Johnson's action was in the spirit identified by Hamilton as restoring the tranquility of the commonwealth. Trials for treason or war crimes would have lasted years and likely left a residue of bitterness lasting generations.

Jimmy Carter didn't have as many enemies as Andrew Johnson. But like Johnson, he made more when he proclaimed amnesty after a divisive war. In Carter's case it was amnesty for resisters against the Vietnam war. Carter was condemned for disrespecting Americans who had answered their country's call to service. Yet his reasoning was similar to that of Johnson and Alexander Hamilton. The wounds of Vietnam were deep in America, and Carter's action made them deeper for some. But not for all, and the amnesty helped America put the Vietnam experience behind it.

The single most controversial pardon by a president was Gerald Ford’s Watergate pardon of Richard Nixon. The Nixon pardon revived an argument that had been made in the earliest discussions of the presidential pardoning power. At the constitutional convention in 1787 a version had been proposed that would have exempted treason from federal crimes a president could pardon. The argument for the exemption was that a president intending to overturn the republic might persuade subordinates to engage in treason by promising to pardon them if they were convicted. The treason exception was rejected by the convention, with the delegates putting their faith in the integrity of presidents.

Nixon wasn't suspected of treason, exactly. But when Ford gave him a blanket pardon, many observers suspected a quid pro quo: Ford to get the presidency upon Nixon's resignation, and Nixon to get immunity from prosecution. No firm evidence was adduced of an agreement between the two men. But it wasn't a good look for republicanism. Nor for Republicanism, in that the Nixon pardon cost Ford in his narrow loss to Carter in 1976.

Donald Trump's pardons of the January 6 rioters from 2021 has once more inspired charges that the pardoning power undermines the rule of law. Trump verbally encouraged the protesters to take their fight against the 2020 election to the Capitol. They did so literally and physically. And after they were arrested, tried and convicted, he pardoned or commuted the sentences of some 1500 of them.

This wasn’t what the framers of the Constitution had in mind with the pardoning power. They intended to secure the tranquility of the commonwealth, not reward those who threatened it.

Which shows that even those who write a constitution can't evade the law of unintended consequences.