Opinion | On Pardons, Trump Is Flipping the Founders' Vision on its Head

A significant part of his argument rested on the view that clemency was particularly important during and after riots and rebellions.

As he explained in Federalist 74: “The desirability of conferring on the President the power of pardons has, if I am not mistaken, been disputed only in relation to the crime of treason… [T]there are often critical moments when a timely offer of pardon to the insurgents or rebels can restore calm in the Commonwealth; and which, if you let them pass unimproved, you can never remember later…”

Hamilton’s connection between the power of pardon and times of inner discord continued with this line of thought can be tracked to similar discussions in Britain during the reign of Queen Elizabeth I in the 16th century. These discussions centered on whether the monarch would need Parliament’s approval to grant pardons to traitors or rebels. Hamilton’s position reflected this debate’s decision to leave that power to the head of state.

It wasn’t long after he wrote Federalist 74 that Hamilton’s view of the prudence of pardoning traitors and rebels was put to the test. On November 2, 1795 President George Washington made use of the President’s powers of clemency for the first time to pardon two men who took part in the so-called Whiskey Rebellion, the first major case of civil war since the Constitution was ratified.

Washington intervened to prevent the hanging of two Pennsylvania farmers and distillers convicted of treason for engaging in violent opposition to an excise tax on liquor. The tax had been championed by none other than Hamilton, then Treasury Secretary.

As Washington reported to Congress in an address given less than a month after the pardon, “The misled have forsaken their mistakes” because he was willing to show “every measure of moderation and tenderness that national justice, dignity and security may permit.”

President Abraham Lincoln also followed the Hamiltonian script when he exercised his powers of pardon during the height of the Civil War. As Andrew Glass described it in POLITICO: “During his presidency, Lincoln issued 64 pardons for war-related offences: 22 for conspiracy, 17 for treason, 12 for rebellion, nine for serving in Confederate office, and four for service in the rebels.”

Lincoln’s successor, President Andrew Johnson, continued Lincoln’s efforts to heal the wounds of war when, on December 25, 1868 he granted a full and unconditional pardon “to all and every person who took part, directly or indirectly, in the late rising and rebellion … for the crime of treason against the United States.” He restored them to their full civil rights, including the right to vote, and hoped to alleviate some of the pain of their defeat.

This bold exercise of presidential prerogative was not simply a noble act in Johnson’s hands. It also was motivated by his hope that the blanket pardon would serve as a bulwark against the possibility that freed blacks in the South might gain significant political power after the Civil War. One could hear a nod to this story in Trump’s Texas speech.

The Hamiltonian practice of showing mercy to those who took up arms against the United States was continued by President Theodore Roosevelt In 1904 Servillano Aquino y Aguilar was pardoned. Aguilar was a leading figure in armed hostilities against Americans in the Philippines, and Roosevelt hoped his pardon would calm tensions.

Fast forward to 1977, and we can see President Gerald Ford’s use of pardon power to heal the nation, not only in his controversial pre-emptive pardon of Richard Nixon, but in his lesser-known ones as well Petition for clemency to a Japanese-American woman named Iva Toguri, the infamous “Toyko Rose”. Toguri had been charged with treason for broadcasting programs aimed at undermining American morale during World War II. Ford showed her mercy as a belated gesture of reconciliation to Japanese-Americans persecuted for alleged infidelity during the war.

From Washington to Ford and beyond, Presidents Hamilton have taken seriously the injunction to use the power of clemency to “restore calm in the Commonwealth.” Not so Donald Trump. His gesture would literally foment division for his own benefit rather than help calm riots — exactly the opposite of how the founders viewed the pardon.

To date, 768 people were charged with criminal offenses because of the events taking place when Congress met to count the Electoral College votes for President and Vice President. Among them are 11 people who were charged in January with seditious conspiracy to overthrow the government. Investigations by the House Select Committee on Jan. 6 and the US Department of Justice are likely to lead to more arrests and indictments.

During his tenure, President Trump frequently used his powers of presidential pardon to help loyal allies circumvent the legal ramifications of safeguarding his personal interests – Steve Bannon, Paul Manafort, and others. His bringing up the possibility of pardons last week does much the same thing, also throwing red meat at his base, stoking their lingering sense of grievance and deepening the divisions that have been his commodity since coming into public life. It fits his playbook perfectly – and is a complete betrayal of the vision of presidential clemency that has served America well for so long.

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