Abusing Grace: Constitutional Subversion in the Presidential Self-Pardon

Adam M. Carrington earned his Doctorate in Political Science from Baylor University and is an Associate Professor of Politics at Hillsdale College. Currently, he is a Garwood Visiting Fellow with the James Madison Program at Princeton University.


‘Tis the season for presidential pardons. President Trump—now a lame-duck with his loss to Joe Biden—already has pardoned Michael Flynn. Many more likely will follow from among his employees, friends, and family. They likely will be broad, giving blanket clemency to any infractions, known or unknown.

The topic of pardons is normal for the final chapter of a presidency. This time, though, a particular twist heightens the drama. Will President Trump also try to pardon himself? He has faced constant and ongoing investigation during his presidency—both federal that he could pardon and state crimes that are beyond his authority. He, however, has no precedent on which to stand. No previous president has tried to do so, though Richard Nixon actively considered it (and an appeal to the precedent of Watergate is not the best look to say the least).

Still, no consensus exists on the legality of a presidential self-pardon. President Trump believes he can do so even as he denies any wrongdoing. There are thoughtful people on both sides of the debate. I will not try to decide that particular question here. Instead, I will argue for why, legal or not, President Trump should refrain from the attempt. He should not self-pardon because doing so would contradict the Constitution’s purposes, both in including the power and in assigning its exercise to the chief executive. In other words, I will examine the constitutional question rather than the merely legal one. 

The Purpose of Pardons

To show a self-pardon’s vices, we must discuss the general pardoning power’s virtues. This authority aids in the pursuit of three purposes: completing the law, infusing mercy, and facilitating prudence.

First, the pardoning power can help to complete the law. This claim appears counterintuitive. As John Marshall wrote, a pardon “exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” A pardon therefore negates the law’s enforcement, which appears to leave the law farther from complete, not closer.

However, we must consider that the law seeks justice. Moreover, it suffers from inherent limitations in this pursuit. Law works by categorizing. It establishes spheres or classes of legality and illegality. Law, then, by nature is general. It must be because it also is hypothetical, stating not whether something occurred but instead what should be done if it did. Discussing the pardon power, Justice Joseph Story recognized this point when he wrote that, for the law, “[t]he most, that ever has been, and ever can be done, is to provide for the punishment of crimes by some general rules, and within some general limitations.”

But, inconveniently, humans and their actions partake of a variety so complex that they defy perfect categorization. Thus, Story continued that “no man in his senses will contend, that any system of laws can provide for every possible shade of guilt, a proportionate degree of punishment.” Real life presents gradations too numerous to account for in general rules. Particulars arose for which it could not anticipate. In some instances, those particulars kept persons from receiving just retribution. But for others, the law punished them more than they deserve. One can think of Jean Valjean in Les Miserables, who received decades of hard labor for a childhood act of theft, one done under the pangs of starvation. Thus, Hamilton spoke of the criminal code’s “necessary severity” and its unavoidable inability to give justice to all with exactness. Hamilton referred to this severity, left alone, as giving justice “a countenance too sanguinary and cruel.” It was law revealing its inherent limits.

We now can see how the pardoning power can complete the law by providing a way to make exceptions to general rules. Here, we should remember that the pardoning power may modify punishment, not just eliminate it entirely. It thereby gives a government flexible means to account for mitigating circumstances and unintended consequences. Law rightly modified by this clemency gets closer to justice, not farther away. In so doing, the pardoning power not only helps complete the law in its pursuit of justice. It also preserves respect for that law, mitigating the expression of its flaws in the minds of the people.  

Next, the pardoning power introduces mercy or grace into our politics. In Federalist 74, Hamilton referred to the power as “an act of mercy.” Chief Justice Marshall in 1833 wrote that “[a]pardon is an act of grace.” The Supreme Court in Ex Parte Garland (1866) referred to it as “[t]he benign prerogative of mercy.” One might conclude that these qualities have no place in politics. As Madison said in Federalist 51, for government, the end is justice, the giving to each what he deserves. Acts of mercy or grace do the opposite. They withhold their object’s just deserts, treating him better than he deserves. A pardon in particular refuses to treat, or even to view, the pardoned for what he is: a lawbreaker. It withholds punishment legally earned, and, according to the Court in Garland, a full pardon “blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.”

The pardoning power holds a necessary place in a polity. The infusion of mercy or grace into our Constitution says that our political community needs more than justice. Humans are beings both relational and imperfect. Our moral and intellectual imperfections guarantee that a polity built on strict justice will fail early, often, and eventually completely. We need additional means to maintain us. Those means must provide for forgiveness and reconciliation, thus allowing a community to weave persons back into the body politic. Thus, the pardoning power comprises one important means to maintaining the social and political fabric. It can cultivate political friendship among citizens and a patriotism based in gratitude.

Finally, the pardoning power provides a tool for exercising prudence. Prudence combines right principle and real life. It seeks the best possible, given the circumstances. We know that circumstances often are far from perfect, especially in political matters. Federalist 74 imagined the situation of an ongoing “sedition.” One might today think of extensive, destructive riots or violence by private militias. In a perfect world, the executive power would bring all such injustice to punishment, including every perpetrator. It thereby would restore peace, order, and protection of the innocent. Circumstances, however, might not make that the best option or even an option at all. Perhaps the rebels are too strong to subdue or doing so would exact a heavy toll in lives, limbs, and property. Then, “forbearance and clemency” toward the rebels might stem the tide, getting back to right order in quicker, less bloody fashion. Prudence would not always dictate clemency, but the pardoning power presented a useful and at times necessary tool for pursuing the common good.

Placement of the Power in the Presidency

Turning to the presidency, we must understand the Constitution’s placement of the pardoning power in light of the previous discussion. Who exercised this authority stemmed from who best could use it to complete justice, infuse mercy, and act prudently.

The president’s fitness for this power began with his unity. We have only one president at a time, as opposed to hundreds of Congressmen and nine Supreme Court justices. In Federalist 70, Hamilton defended a unitary chief executive as energetic enough to vigorously enforce the law and safe enough to remain within proper bounds. Both qualities benefited the exercise of the pardoning power.

First, unity’s safety aided the completion of justice and the exercise of mercy. Hamilton connected safety to responsibility. Whether good or ill, a chief executive could not pass off his department’s performance to another POTUS. This point assumed something about the president’s internal motivation. Unity’s responsibility worked because of the president’s self-interest—in particular, his interest in gaining honor and avoiding shame. As early as 1780, Hamilton argued for single heads of administrative departments because it would offer greater opportunity for distinction than serving on multi-member boards. With more opportunity for honor, then, came better exercises of power.

Turning to the pardoning power, Hamilton wrote in Federalist 74 that “a single man would be most ready to” use the pardoning power to complete the law. He would consider “the force of those motives which might plead for a mitigation of the rigor of the law” when it proved too harsh. He also best could reject “considerations which were calculated to shelter a fit object of its vengeance” when the law proved just in its letter. Hamilton explained why in terms of shame and honor. Explicitly, he spoke of the former. A president would “dread…being accused of weakness or connivance” for too much clemency. The chief executive, also, would fear too great harshness when “the fate of a fellow-creature depended on his sole fiat,” for his own conscience’s sake but apparently also for public perception. Implicitly, Hamilton also pointed to the desire for shame’s opposite. While perception of too great or too little clemency would bear opprobrium, proper use would garner praise. We often read stories of incarcerated persons that engender pity or rage. Clemency toward the former or refusal for the latter would translate into honor for the president.

Second, a similar argument pertained to pardoning as an act of mercy or grace. Properly used, a pardon could obtain honor for a president due to the mercy it evinced. In fact, the Supreme Court in Ex Parte Wells (1855) compared the presidential pardon to “an attribute of deity whose judgments were always tempered with mercy.” If God received praise for gracious and merciful treatment of sinners, then so too could a president obtain honor for showing those qualities in clemency.

Third, the president’s energy fitted him for the prudence the pardoning power facilitated. Recall that certain instances of crisis might call for clemency. In the midst of a crisis, Hamilton wrote, “a welltimed offer of pardon…may restore the tranquility of the commonwealth.” The right time may come only once, and in passing, for events might move swiftly, requiring immediate action. This possibility pointed to the need for the president to handle it. For the president’s unity encouraged decisiveness, activeness, and speed–just the qualities needed to seize the moment.

These reasons show why the Constitution gave the president the pardoning power. His unity enhanced or at least protected the purposes the pardon power pursued. Taken together, we see much wisdom in the Constitution’s inclusion of a pardon power and its placement with the president.

Subversion in the Self Pardon

We can discuss instances where presidents abused the pardoning power. Look no further than President Clinton’s last-minute pardons for family and political contributors for an example. Will we ever be able to think of Bill Clinton without also thinking of Mark Rich? But a self-pardon is different. It is not merely susceptible to abuse; it is an abuse by definition. It subverts every constitutional purpose for the power—completing justice, infusing mercy, and exercising prudence.

The self-pardon transforms the role of presidential unity from a means for facilitating these goals to one sabotaging them. It’s obviously a problem that self-pardons make a president judge in his own case, but the depth and breadth of its constitutional subversion needs further articulation.

To begin, consider that the pardoning power completes the law by moving its application closer to justice. Presidential unity supports this completion through his pursuit of honor and the avoidance of shame. A self-pardon, though, makes presidential unity the enemy of justice. It does so by changing how the president understands his self-interest. In pardoning another, a president seeks praise for himself. That praise, as noted before, comes from observers perceiving his clemency to be right. In a self-pardon, the president does not seek honor from others for his choice. Instead, his self-interest wishes to avoid punishment for himself, regardless of the law’s rightful demands. In a self-pardon, then, a president’s self-interest replaces justice rather than pursues it. This does not complete the law; it risks making the president a law unto himself, for himself.

Moreover, a president pardoning himself cannot square with infusing mercy. For one, we must understand that the giver and receiver of mercy occupy fundamentally distinct positions of power. The giver is mighty; the receiver, helpless. Thus, the pardoning power extends to the weak from the strong. In a self-pardon, no such distinction exists. Instead, in such a pardon, the strong seeks to move from strength to invincibility. Pardoning others restores a bond between the community whose power the president wields and the convicted whose punishment estranged him from the polity. Yet a self-pardon does no such thing. Quite the contrary, it more likely creates estrangement, isolating the president from the people. It accomplishes this division by reducing the power’s use from one of common good to private privilege.

For similar reasons, a presidential self-pardon likely undermines rather than facilitates prudence. An ancient dividing line between good and bad governments lays in whether rulers exercise power for their own good or the people’s. Hamilton imagined the pardoning power as aiding the timely restoration of public order and tranquility. It would limit the punishment of law to better ensure the continued rule of law and thus the public good. The Anti-Federalist Cato saw in the power the other, self-serving option. He did not fret about a self-pardon. Instead, he worried that pardoning others, among other Article II powers, would “tend either to the establishment of a vile and arbitrary aristocracy, or monarchy.” Cato imagined the creation of something resembling a king’s court surrounding the president. The executive would use the pardon power to create a lawless ruling class of elites by legal immunity dedicated to gratifying the president’s whims. In other words, the president would pardon others to serve himself. A self-pardon has the same spirit but clarifies even more that one is governing for self-gratification; for can there be a purer instance of a ruler exercising power for his own sake? Such action can never be prudent because it can never be more than an act of selfishness.

Conclusion

President Trump has prided himself on breaking conventions that he sees as weak or useless to his own goals. A self-pardon would break with the entire history of American executives. It would mark one of his greatest dismissals of norms, regardless of the power’s legality or whether he in fact committed any crimes.

He should not do so. Already, his exercise of the pardon power has strained against its Constitutional purposes. Whatever the merits of individual grants, naked self-interest accounts for the unity in President Trump’s pardons. For the surest paths to receiving one appear to be unflinching loyalty and uninhibited adoration–not to the law, not to the Constitution, but to the man. A self-pardon would take the abuse to a new level–a kind of self-adulation under clemency’s guise.

Instead, Americans must renew our thinking about the pardoning power. On it, as on so many things, we must re-learn to think constitutionally. Can we do so? ‘Tis the season to try.

Read Greg Weiner’s Response >>>

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