The U.S. presidential power to issue pardons, so liberally wielded by President Donald Trump in recent weeks, has riled his critics, but history shows presidential pardons have courted controversy from the very beginning.
The Founding Fathers gave presidents near-absolute pardon power as a way to soften the edges of inflexible criminal law, says Brian Kalt, a professor of law at Michigan State University’s College of Law.
“They debated it and they decided that the power could be abused, but it was important to be able to pardon, even treason, because as [Alexander] Hamilton argued in the Federalist Papers, there might be a rebellion going on, and it might be a good way to end it.”
That was the case with the very first presidential pardon issued by George Washington on November 2, 1795. America’s first president pardoned two men sentenced to die in connection with an insurrection that came to be known as the Whiskey Rebellion. The men were part of an uprising of distillers protesting a costly tax on spirits.
“And so, in that case it worked the way they had hoped it would,” Kalt says.
Pardoning the mob?
Today, as Americans sift the political fallout of Wednesday’s riotous assault on the very seat of constitutional power, a few experts are wondering if Trump, in his final days in power, might issue a blanket pardon for all those involved in the melee. The prospect of more pardons is already giving impetus for pressure in the U.S. House of Representatives to try to oust Trump from power even before his term ends on Jan. 20.
While new details about the death of a Capitol Police officer — who was reportedly bludgeoned to death by the mob — make any such pardon even more provocative, experts say there is no legal impediment to Trump issuing such a pardon.
“He can pardon any offenses against the United States, so that would include federal crimes, which they probably committed,” says Kalt. “I think President Washington's reason for doing it was that he wanted to tamp down the tensions and trying and executing [inciters of the Whiskey Rebellion] would have made things worse and not better. In this case, I don't think you could say that. I think pardoning those people [who stormed the Capitol] would make things worse and not better. It would have the opposite effect.”
Presidents have broad pardon powers when it comes to federal crimes, but they cannot use that power to stop themselves or others from being impeached by Congress. They also do not have the power to pardon state crimes.
Trump can wipe away any charges in connection with the January 6 incident brought by authorities in Washington, D.C.
“What elsewhere would be state crimes, in D.C., because it's federal, those constitute federal offenses and he can pardon those, too,” Kalt says. “And the pardon power is broad and doesn't really carve anything out. If it's a crime and if it's federal, he can pardon it.”
That includes pardoning people who’ve yet to be named or charged.
“He could do so right away — he does not need to wait until any formal legal process has started,” Jeffrey Crouch, an assistant professor of politics at American University and the author of a book on presidential pardon power, told VOA via email.
If Trump does offer clemency to the rioters, he would not be the first president to issue a blanket pardon.
On Christmas Day in 1868, Andrew Johnson pardoned all former Confederates who fought against the United States in the Civil War. Some of the men Johnson pardoned went on to become architects of the Jim Crow laws that legalized racial segregation.
In 1977, President Jimmy Carter pardoned most people who evaded the draft during the Vietnam War. Carter hoped the mass pardon would heal deep national divisions caused by the war, but there was an outcry from veterans' groups who condemned the move.
A pre-Revolutionary concept
The concept of pardons was not new. English monarchs had the power to grant clemency to their subjects. The practice carried over to the British colonies where the governors could grant mercy. At the Constitutional Convention in 1787, Hamilton proposed giving the president the power to pardon people who had committed crimes or to reduce their sentences.
The framers of the Constitution debated whether to place limits on pardons and considered involving the Senate in clemency decisions.
“They ultimately decided to make the president’s pardon power all but unlimited,” Crouch says. “They trusted that he would use it responsibly or risk the wrath of voters and potentially even impeachment."
Pirates, rebels and freedom fighters
The list of people pardoned by presidents is long and varied.
In 1800, Thomas Jefferson pardoned everyone convicted under a measure that outlawed defaming the government. James Madison and James Monroe pardoned pirates. John Quincy Adams pardoned two Native Americans convicted of attacking white civilians. Millard Fillmore pardoned two men convicted of transporting enslaved people to freedom. Franklin Pierce pardoned a free Black man who helped slaves escape their captors.
President Ford created an uproar in 1974 when he granted his predecessor Richard Nixon a full and unconditional pardon before Nixon could be indicted in connection with the Watergate scandal.
“President Ford could have handled the Nixon pardon better, but ultimately it was granted for the right reason — so the country could put Watergate in the rear-view mirror,” Crouch says. “The decision came with political costs: it contributed to massive losses by congressional Republicans in 1974 and likely hurt Ford’s presidential run in 1976.”
Ford lost to Jimmy Carter in the 1976 contest for president.
Lame duck pardons
Modern presidents have taken to issuing more controversial or unpopular pardons once they no longer have to answer to voters. This lame duck period occurs between election day in November and Inauguration Day on Jan. 20 when they leave office.
“That is the flaw in the design,” Kalt says, “that the president has power because he's accountable, but he has it even when he's not.”
One day before he left office, Trump’s predecessor, Barack Obama, commuted the sentences of 330 non-violent drug offenders.
Bill Clinton pardoned his half-brother who was convicted of a drug charge. He also pardoned billionaire Marc Rich for tax evasion. Critics complained the pardon came after Rich’s ex-wife donated generously to the Democratic National Committee, the Clinton Library and Hillary Clinton’s New York senate campaign.
On Christmas Eve in 1992, President George H.W. Bush pardoned former Secretary of Defense Caspar Weinberger and five others for their illegal actions during the Iran-Contra scandal during the Reagan administration.
Trump has pardoned a number of associates since the November election, including former campaign manager Paul Manafort (convicted of bank and tax fraud), Roger Stone (convicted of seven felonies including witness tampering, obstruction and making false statements) and former National Security Advisor Michael Flynn (pleaded guilty to making false statements to the FBI).
“The media and the public are focusing right now — and rightfully so — on Trump’s pardons to Paul Manafort, Roger Stone and others in Trump’s orbit,” Crouch says. “But there are thousands of applications in limbo with the [Office of the] Pardon Attorney right now, from petitioners without the financial means or powerful friends enjoyed by many of Trump’s latest clemency recipients. If his presidency ends without showing mercy to more of them, it would be a real missed opportunity.”