“The benign prerogative of pardoning”
At the birth of the United States, Alexander Hamilton argued in Federalist 74 that “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” Yet, long before Trump and Biden’s recent pardons, the pardoning power has been controversial almost from the start. As Duker (1977) wrote in the aftermath of Nixon’s pardoning, the pardon is part of the very bedrock of Anglo-Saxon common law as an essential prerogative of the monarch. Unsurprisingly, the question of the pardoning power was taken up by the Founding Fathers, where the least restrictive form of the pardon found its greatest champion in Alexander Hamilton.
In Federalist 74, Hamilton offers two arguments for a strong pardoning power—expediting mercy and quelling insurrections. Hamilton felt mercy was an essential feature of government, and should not be stuck behind political impediments. Hamilton believed pardons were essential for any president to negotiate with insurrectionists, who might otherwise fight to the last if they could not surrender.
Thus, Hamilton midwifed into the Constitution a pardon with the force to disable any federal penalty. The pardoning power had, and has, a very short list of constitutional checks:
- Pardons cannot be given for impeachment.
- Pardons could be found unconstitutional by the Supreme Court.
- Pardons can be refused.
This is settled constitutional law: a president has full power to mollify or remove punishment, except for these checks. But each check is highly limited as a check on pardons. Firstly, impeachment is a dramatic move—removing the highest elected official in the land without democratic input. When impeachment has been attempted, it has failed to remove any president: the threshold of 2/3rds of the Senate is too high. Secondly, the Supreme Court does not have original jurisdiction over pardons, which means pardons have to go to the Supreme Court through appeals from lower courts. Achieving standing could prove difficult: standing requires a real interest in the case, usually a harm, but pardons by their very nature are considered ameliorations of a harm. It is not surprising that there is vanishingly little federal case law on pardons, despite their inception at the beginning of the republic. Some do refuse pardons: people who maintain their innocence or the justice of their punishment above all else refuse pardons. Needless to say, people willing to accept punishment even if offered a pardon are a special case.
The Problem with Pardons
The U.S President has a uniquely powerful pardoning power at the federal level, due to the pardon’s relative lack of checks. The constitution is designed so that the branches have the ability to check each other. Not every power has a corresponding check, but many powers require cooperation between branches. In its constitutional context, the pardon stands out as stunningly unfettered. It seems critical to point out that Hamilton believed that a benign measure of mercy could not be misused: he seems to believe no one would be so shameless. Nonetheless, the pardon is not merely a signal of mercy: it is a legal action, one that can effectively nullify the legal penalties of breaking Congress’s laws.
So, while Hamilton believed in the “benign” nature of the pardon (how could too much mercy be a bad thing?), the pardon remains unbalanced. Pardons depend only on the whims of one person. Even assuming that mercy and forgiveness can be granted by the pardon, and that apt grantings of pardons are a key source of justice, we must remember that the system as a whole provides other types of justice as well, and the pardon is a dangerous destabilizing element in the system. We Americans may well decide that this is a tradeoff worth making—it is unclear that we have fully reckoned with the consequences, for better or worse.
Normative Questions: Forgiveness and Standing
The pardon is at its most strange when viewed in its common guise as an act of forgiveness by the state. Let us suppose that they are for now. If so, they are apt to be given when their target (the pardoned) is apt for forgiveness. Plausibly, forgiveness requires standing to forgive: it is not apt to forgive when one does not have standing to do so. I argue that pardons inevitably fail the second criterion.
First, if the president is using the pardon to forgive, it makes sense to ask if the president has the standing to forgive. While it is certainly the case that the president is constitutionally empowered to pardon, and the president is the head of state, and thus representative of the nation as a whole, neither of those necessarily make the president an apt forgiver. Suppose Alan is a very busy businessman who has made many enemies who have slighted him in various ways over the years. Yet Alan believes in forgiveness, and asks Thomas, his assistant, to go through the various accumulated slights and decide which to forgive and which not to forgive. Alan promises Thomas that he will entirely defer to Thomas in these forgivings. I would think Thomas lacks the standing to forgive Alan’s enemies, even if he has been given permission and deference to decide, because the standing to forgive is not transferable. Harm done to one person is not harm done to another. We see this principle in tort cases: to bring a tort, you need standing. It would be one thing if Alan allowed Thomas to decide plausible decisions, but then reviewed them himself. In this case, Alan is ultimately making the final choices.
Secondly, while we assumed pardons are instances of forgiveness, it remains open whether pardons are aptly seen as forgiveness by the state. Forgiveness implies that a
crime was, in fact, committed. But pardons do not obviously imply that a crime was committed. A presumptive pardon needn’t imply guilt. Further, such pardons deny a clear fact-finding by the courts. For example, there is no legal fact, decided by courts, that showed Nixon was guilty and for what reasons. Pardons like Nixon’s rob us of the clear fact-finding that the adversarial system of law is meant to provide. Some, like the United Nations, see knowledge of certain harms as an inalienable human right, and pardons can obfuscate that by denying the adversarial fact-finding process in the court. Pardons as forgiveness can also be complicated by whether or not the “crimes” being “forgiven” were, morally, crimes. All of this is to complicate the pardon’s claim to be an instance of forgiveness of a crime by the state.
Pardons as forgiveness does offer one theoretical benefit: it helps explain why it would not be apt for presidents to pardon themselves. It seems clear that, legally, nothing stops the president from pardoning themselves for federal crimes, aside from impeachment. Yet, if pardons are acts of forgiveness, then a self-pardon is analogous to self-forgiveness. Yet the violation of the laws of the state is a violation against the state or the people. If so, plausibly, those are the entities with the standing to forgive. Moreover, an individual who commits a crime against the state cannot be said to have been harmed by their own crime, so committing such a crime is not a crime against themselves. If so, then the representative neither has standing to forgive on behalf of the people—as they were the offender, nor standing to forgive themselves as an individual—as it was their own crime.
Adding Balance
Congress is the primary counterweight to the executive: it seems only reasonable that Congress have some say in the pardoning process. This would certainly make pardons even more politicized. Alternatively, there is the possibility to create a separate branch, analogous to a state-level pardoning board, to handle the pardoning power. If appropriately constituted, such a branch acts as the people deciding, on their own terms, pardons, in a way friendlier to our constitutional order and the rule of law.
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