After a tumultuous four years, Joe Biden will this week raise his right hand and swear an oath to uphold the Constitution as the 46th President of the United States. Before then, President Trump will almost certainly use his power as President to issue pardons. He may pardon his staff, his family, rioters, and even himself. Why do presidents have this power?
The executive pardon is very old, going back to ancient Greece and Rome. Pardons appear in at least two places in the Bible (2 Samuel 19:23, Luke 23:16-17).
America inherited the pardon from England, where it was, and is, called the royal prerogative of mercy.
Since about 700AD, Kings and Queens of England have used pardons as a safety valve for justice.
Medieval law lacked flexibility. For example, it did not distinguish between deliberate and accidental deaths. In 1249, a four-year-old named Katherine Passcavant opened a door and accidentally pushed a child into a tub of hot water. The child died and Katherine was jailed in St Albans. The courts had no way to acquit her, only the King’s mercy could help.
The nobility found other uses for pardons. In the 12th century, Henry I began to offer pardons for a fee. Edward Longshanks later used pardons to conscript troops. After declaring war, Edward offered to pardon any felon including murderers willing to serve for one year at his own cost. The offers were readily accepted.
In the 18th century, Britain pardoned criminals conditional on transport to the colonies, particularly Australia.
Today, most countries have some version of the pardon. Commonwealth countries including New Zealand have the Royal prerogative of mercy, a power vested in the executive of state or national governments.
In New Zealand, the Royal prerogative of mercy is exercised by the Governor General on the advice of the Minister of Justice. Perhaps the most famous use of mercy was for Arthur Allan Thomas in 1980. (During Thomas’ second trial, police allegedly danced with members of the jury days before the verdict. But that is another story).
Pardon an uncontroversial addition to US Constitution
During the drafting of the US Constitution in the summer of 1787, the framers struggled with what a president should do. They were torn between giving the president enough powers but not too much. America’s independence was hard won. The framers did not want to remove one monarch only to create another.
Despite its awesome power, the pardon was an uncontroversial addition to early drafts of the Constitution. Most of the framers believed pardons should be there. The main questions were whether pardons should include treason, and whether the power should sit with the legislature or the executive, or both.
The framers settled on the following text in Article 2 section 2 of the Constitution:
[The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
The framers understood that one day a person of lesser character than George Washington might one day be President. They saw impeachment as a catch-all solution for abuses of pardons. That is why pardons do not cover impeachment.
The framers believed pardons protect stability in difficult times by preventing injustices in criminal proceedings.
The first pardons, by George Washington in 1794, were given for exactly that reason.
After personally leading an army to put down the Whiskey rebellion (a backlash against a tax on spirits), Washington pardoned two men who were convicted for their role in the rebellion. They might have hanged, but Washington wanted the matter put to rest.
Seventy years later, President Andrew Johnson pardoned the confederate generals to aid reconciliation after the civil war.
Not all pardons have quelled tensions, however.
President Trump’s pardon of General Flynn outraged many people because it appeared to be motivated by self-preservation. The pardon may have bought Trump protection from incriminating revelations.
Other presidents have also used pardons in a self-serving way.
President George HW Bush pardoned his former Defence Secretary Caspar Weinberger on the eve of Weinberger’s trial for his role in the Iran-Contra affair. Bush may have been concerned about revelations of his own role in the scandal at trial. On his last day in office, Bill Clinton pardoned his brother’s 1985 drug conviction.
Presidential pardons are not unlimited. Presidential pardons only cover federal crimes, not state or local crimes, and not civil suits. Trump will not be able to pardon his way out of his ongoing prosecution in New York.
Pardons can precede indictment (President Ford pardoned Nixon before Nixon was charged) but cannot cover future crimes.
Can President Trump pardon himself?
It is not clear he has that power. The text of the Constitution does not rule out self-pardons, at least not clearly, and the Supreme Court has never considered the question.
In the last days of Richard Nixon’s presidency in 1974, the Justice Department advised self-pardons are not authorised in the Constitution. Officials based their view on the fundamental legal principle that no person may be a judge in their own case.
If Trump does pardon himself before he leaves office, he takes the risk that the Supreme Court will strike out the pardon.
The Constitution provides a way out of the conundrum.
Under the 25th amendment, Trump can declare himself temporarily unfit for office. Mike Pence becomes Acting President. In that role, Pence can pardon Trump. Trump then declares himself fit to resume the Presidency, or resign.
Regardless of legalities, such self-serving high jinks by a sitting President and Vice President would damage the Constitution and amplify tensions across the country.
Such niceties might not bother Trump. As the former national security adviser John Bolton recently observed, Trump never felt “the weight of the presidential office and the gravity of the responsibilities he faced… He didn’t fully appreciate what it meant to be president or what was necessary to be successful.”
If anyone is willing to do Biblical-level harms to the country to protect himself, it is probably Donald Trump. Thursday cannot come soon enough.