Ulysses S. Grant
We have seen a lot of manual work on President Donald Trump’s eleventh hour marathon with blatantly unethical pardons, but only a minor consideration (see here, here, here, here and here) whether the Constitution allows it. A decent case can be cited that it is not – and that at least some of these pardons are reversible.
The relevant passage is Article II, Section 2, in the so-called “Commander-in-Chief Clause”. The president, it is said, “should have the power to grant reparations and pardons for crimes against the United States, except in cases of impeachment.” Nobody knows exactly what that means, but Trump has been under impeachment since January 13 and is awaiting trial against the Senate for the second time.
The most interesting real-life precedent for curtailing a president’s pardon concerns President Andrew Johnson, the first of three presidents to be indicted by Congress in March 1868 and the first to win the Senate acquittal two months later.
In March 1869, on his last full day in office, Johnson pardoned Jacob and Moses Dupuy, who had been convicted of internal revenue fraud, and Richard C. Enright, who had been convicted of conspiracy to defraud the government. Upon taking office, Johnson’s successor, President Ulysses Grant, reversed all three by calling back the U.S. marshals to deliver the pardons. A fourth pardon that Grant wanted to revoke a James F. Martin was allowed to stand because Martin already had it in his hand, according to the late PS Ruckman Jr., political scientist at Rock Valley College in Rockford, Illinois. Grant’s revocation of Moses Dupuy’s pardon was challenged in court and confirmed with the technical reasons that Dupuy had never received it. (Ruckman, an expert on presidential pardons, died in 2018 under circumstances too distractingly cruel and sad to come here.)
Obviously, pardons are no longer delivered on horseback; You will be received immediately. Can they still be reversed by the successor to a president? Yes, if the pardon-issuing president was indicted under the 1868 revised edition of A Familiar Exposition of the United States Constitution, a popular textbook written by Joseph Story, Associate Justice of the Supreme Court. If “the power of pardons were extended to impeachments,” wrote Story, it “could no longer protect against political crime.” The accused party could be acting under the authority of the president or one of his corrupt favorites. It is therefore wisely accepted by its general authority. “
The question of a president issuing a pardon to protect himself from accusations or political embarrassment emerged in 1992 when President George HW Bush met former Defense Secretary Caspar Weinberger 12 days before his trial over the Reagan Iran-Contra scandal -Government pardoned. Bush had been Vice President under Reagan, and the Weinberger trial was intended to shed light on Bush’s alleged involvement in the scandal. The Weinberger pardon, together with separate pardons for four other participants in Iran-contra, caused outrage in the press. An enraged Lawrence Walsh, independent Iran-contra attorney, wrote in his final report that Weinberg’s pardon “was the first time a president pardoned someone at whose trial he might have been called as a witness because the president was giving up factual information was underlying the case. “However, since Bush was never charged, there was no constitutional debate.
Then Bill Clinton’s pardon came to fugitive financier Marc Rich, who fled the United States on charges of extortion, wire fraud, and various other crimes. Critics said Rich bought his pardon by donating his ex-wife Denise over $ 100,000 to the 2000 Senate campaign from Hillary Clinton and a $ 450,000 contribution to the Clinton Library. Unlike Bush, Clinton had been charged. A Justice Department investigation into pardoning the rich was conducted by an assistant attorney general and former US attorney who participated in prosecuting the rich. His name was James Comey. Comey concluded, presumably with some regret, that pardoning the rich did not violate any law.
What Comey did not consider or inadequately considered was whether Clinton’s successor, President George W. Bush, could lift the pardon from the rich regardless of whether or not Clinton violated the law in granting it. We have had ample opportunity since then to question the quality (and ramifications) of Comey’s judgment on other matters. In that case, Comey should have given Bush the opportunity to revoke Rich’s pardon. Bush himself would later demonstrate that a presidential pardon can be revoked by revoking one of his own “based on information later revealed,” including the fact that the recipient’s father recently reported more than US $ 30,000 Dollars donated to Republican candidates. (Oops!)
The pardon language in Article II of the Constitution has never received the attention it deserves, so there isn’t much jurisprudence to fall back on. One way to find out its potential significance is to consider the debates during the Constitutional Convention in the summer of 1787. These support a broad interpretation of “except in the event of impeachment”. The Framers had a deep awareness of monarchical abuses of power and were completely familiar with the kind of predicament Trump had created by pardoning the likes of Roger Stone, Michael Flynn, and Paul Manafort. Such abuses had been committed by English monarchs, and laws had been created to curb them. For example, the review of the king’s ability to pardon corrupt ministers had been incorporated into the 1701 Settlement Act, which became an integral part of the (unwritten) English constitution. The Framers were also aware of the abuses committed by colonial governors.
Edmund Randolph said at the Constitutional Convention that it was too much confidence to allow a president to apologize even for treason. The president himself can be guilty. The traytors can be his own instruments. “James Wilson, a delegate for Pennsylvania and later one of the main interpreters of American law, claimed that if the president was” himself a party to guilt, he could be charged and prosecuted. ” The question of treason is no longer a theoretical one. In Parliament’s January 13 impeachment ruling, Trump was accused of treason by “inciting violence against the United States government”.
The founders were hardly perfect, and many of their original plans required changes in the name of justice. But they absolutely understood the potential for corruption, including, and especially, the person who was elected president. Trump’s pardon for those who may have conspired with him to undermine the balance of power, commit corruption and possibly overthrow the republic is exactly what they feared most.
This piece first appeared in Backbencher, Noah’s Substack publication.