Every four or eight years, after we close out the holiday season, another begins: the season of the presidential pardon. In the lame duck lead-up to our—fingers crossed—peaceful transition of power, modern presidents have used these days to offer clemency, reprieves or pardons for a wide assortment of criminal activity. Looking closer at the power of the pardon, it’s easy to see how far we’ve deviated from the original intent of this unique and awesome authority.
The idea of the presidential pardon was initially suggested by Alexander Hamilton during the Constitutional Convention. At the time, critics stressed the royal pardon abuses of old Europe, worrying that unqualified power could end in similar tyranny. George Mason, the Virginia statesman, even argued against ratifying the Constitution in part because “the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself.”
A proposal that would have required the Senate to approve presidential pardons and another that would have included treason along with impeachment as one of two unpardonable offences were rejected. In the end, Article 2 of the Constitution gave a president the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
To understand Hamilton’s thinking behind the pardon, we can look to the Federalist Papers, essays written to sway New Yorkers into ratifying the Constitution. In Federalist No. 74, Hamilton wrote, “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.”
Recognize in Hamilton’s own words his worry that our fragile union was so delicate that it would benefit from some manner of executive dispensation. And that’s exactly how it was first used. In 1794, President George Washington led 13,000 militiamen to confront farmers in Western Pennsylvania rebelling against the federal government for imposing a tax on distilled spirits. In the end, 20 men were arrested. Some were acquitted. The rest, 16 in all, were convicted; a year later, Washington pardoned them.
In those embryonic years, other “critical” moments followed. When protesters marched on a jail in Bethlehem, Pennsylvania and freed fellow insurgents fighting against a new tax on dwellings and land, President John Adams called on federal troops to quell the uprising. John Fries and several of his associates were arrested, convicted and then pardoned by Adams. In 1801, Thomas Jefferson issued a general pardon for any person convicted under the short-lived Sedition Act. That included David Brown, a Revolutionary War veteran who erected a liberty pole with a sign that questioned, among other things, the Sedition Act itself.
These early presidential pardons overwhelmingly ran parallel to Hamilton’s original intent: show mercy for political insurgents still trying to wrap their heads around a brand-new form of government, or, in later years, to mend a nation torn apart by civil war. Over time, however, the perversion of Hamilton’s presidential pardon became a fait accompli, making George Mason’s concerns rather prophetic.
Most damaging was 1976, when President Gerald Ford pardoned Richard Nixon for crimes that had yet even to be specified, if any were going to be levied against the former president at all. Legal arguments aside, Ford’s pardon paved the way for others to reward political cronies or protect themselves from further liabilities.
Mild-mannered George H.W. Bush pardoned six participants of the Reagan administration’s Iran-Contra Affair. He followed that with a pardon of Armand Hammer, C.E.O. of Occidental Petroleum, right after Hammer sent the Republican National Committee a $110,000 contribution. The irony here was that Hammer was originally convicted of illegally contributing $54,000 to Nixon’s re-election campaign.
Pardon malfeasance is a two-way street, although most traffic does run in Republican lanes. Bill Clinton pardoned business partners, campaign contributors and two Democratic members of Congress. The second George Bush commuted Lewis “Scooter” Libby’s sentence after Libby knowingly unmasked a C.I.A. officer. Bush then tried to pardon a Brooklyn real estate developer named Isaac Toussie, but when news broke that Toussie’s father had made a $28,500 contribution to the Republican Party, the pardon was revoked just one day after it was issued.
All of this prepared us for the unabashed use of partisan pardons that have recently been executed by Donald Trump. His list of pardons includes a rogue’s gallery of loyalists, swamp creatures and corporate scam artists. Many, like Paul Manafort, Roger Stone and Michael Flynn, have been in the headlines throughout his presidency. Others, like Stephanie Mohr, a Maryland police officer who encouraged her police dog to attack a homeless man who had already surrendered, are less well known.
By enshrining the pardon in our Constitution, the founding fathers’ objective was to provide a remedy to restore tranquility and heal division. This is best interpreted as something bestowed on political adversaries as a way not to deepen existing rifts but rather soften the hard edges that divide us. Given how the presidential pardon is being misapplied to reward partisanship and expand the chasms between political parties and cultural factions, we must realize, as George Mason did, that too much power in one person’s hand will end in some form of tyranny.
Amos Klausner lives in San Geronimo and serves on the local school board.