Roger Abshire is Assistant Professor of Instruction in the Department of Political Science at Texas State University.

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President Biden has continued the trend of recent presidents by granting very few pardons during the working portion of his term, by which I mean before the traditional “lame duck” period. Like his recent predecessors, the vast majority of his clemency warrants will be issued in the days – or even hours – preceding the inauguration of his successor. As such, speculation about who will receive Biden’s executive clemency will start to grow over the next few months, and one potential recipient is Donald Trump.

Biden, like only one prior president – Benjamin Harris – will return the presidential reigns to the same person who turned them over to him. In addition to this oddity is the fact that the Biden administration is currently pursuing multiple criminal prosecutions against his predecessor/successor. Some have already made the case that Biden should pardon Trump because the public, through the ballot box, has effectively rendered a “definitive verdict on the subject”, or because of the various practical considerations with having a sitting president with criminal charges hanging over his head.

However, if we look to the Founding, when the pardon power was being subjected to intensive constitutional scrutiny, we can derive additional insights into why a Trump pardon might be even more consistent with the constitutionalized prerogative of mercy than is indicated by contemporary commentators. Instead, we can find in Alexander Hamilton an argument that a Trump pardon would fulfill one of the fundamental aims of executive clemency and that such a pardon would be superior to possible alternative modes of disposing of the pending criminal proceedings.

As is often pointed out, Hamilton was a key figure in the initiation and defense of the presidential pardon power. He was the first delegate at the Federal Convention of 1787 to mention the inclusion of pardoning as an executive power when he proposed that the executive power ought to include the “power of pardoning all offences except Treason; which he shall not pardon without the approbation of the Senate.” By the time the Convention adjourned sine die on September 17^th, the exception for treason had been replaced by an exception for impeachment, but Hamilton had made no additional contributions to the debate of the parameters of the pardon power. Still, a strong pardon power was included in the proposed Constitution and was quickly attacked by prominent opponents of the Constitution.

Most of the debates regarding the pardon power focused on the limitations, or lack of limitations, that were placed on the exercise of the power, rather than the overall utility which it might provide. There was fairly widespread support for clemency within the national government, and when Hamilton wrote as Publius to defend the pardon power in Federalist No. 74, he used this agreement on functional need to further the defense of the structural design choices made in the Constitution by the framers in the Convention; choices which resulted in a pardon power that was exclusively presidential with only a single, narrow exception. Hamilton makes two primary functional claims about the necessity of clemency during the state ratification period from late 1787 to sufficient state ratification in 1788.

Firstly, he argues that without a constitutionally prescribed pardon power the criminal law would be “too sanguinary and cruel”. This was a long-held view of the utility of clemency that predated even the colonies and was a traditional prerogative exercised by kings throughout the monarchies of Europe. What amounts to an essentially legal argument goes back as far as the equitable arguments of Aristotle who wrote about the inherent limitations of written law and that a remedy must be available in those circumstances when a lawful outcome is not just.

Secondly, Hamilton makes the case that circumstances may arise “when a well-timed offer of pardon” will diffuse insurrection or rebellion and “restore the tranquility of the commonwealth”. In the case of Federalist No. 74, and when referenced by others, this was typically offered as a defense of the extension of the pardon power to cases of treason. This point became particularly contentious during the ratification debates as many Anti-Federalists argued that the presidential pardon power was more likely to be used to “pardon traitors for treasons committed in consequence of his own ambitious and wicked projects” than safeguarding the country.

Treason, insurrection, and rebellion, however, are not the sole causes of political turmoil and are not the only applications of the pardon power under Hamilton’s “tranquility” understanding; political turmoil comes in many forms and Hamilton acknowledges as much. He alludes to the dynamics of group composition as a factor that might determine the means by which they would need to be addressed by the state. Groups that espouse concerns shared by a substantial portion of the population will need to be addressed such that any necessary punishment is appropriate to the circumstances. 

There is a case to be made that our present political climate, though no substantial political groups are in active rebellion, might constitute the kind of political turmoil in which a Hamiltonian “tranquility” pardon could be in order. There is widespread concern about the tone of American political discourse. There have been numerous instances of politically motivated violence over the past few years, and various political figures have seemingly used, or threatened to use, the institutions of government against their political opponents.

Featured prominently in the later, Trump has faced legally dubious prosecutions for the better part of the Biden administration and Biden and his family have faced long-running investigations from various congressional committees since the Republican party gained control of the House of Representatives after the 2022 midterm elections. Both parties have thrust the weight of the political institutions they control behind a form of institutional political punishment, and both parties have fueled a type of political turmoil that has threatened American political and social stability.

Were Biden to pardon Trump for even just the narrow set of facts under which he has been indicted and is facing jeopardy in the federal courts, it would send a distinctive message to the American public that even in the aftermath of a highly contested election the politic elites of the nation could treat each other with grace and dignity. While there is likely no panacea for the political discord that permeates American politics, it is quite possible that a presidential use of the constitutional pardon power, of the sort defended by Hamilton, could lower the political temperature and establish some good will among the political elites that might just percolate to the people.

A skeptical observer might ask why Biden could not achieve the same goal by directing his Attorney General to drop the federal cases currently being pursued against Trump. In principal this might be a near equivalent, but in our present circumstances it may lack the same force as a prompt pardon. This is largely because if the Justice Department were to move for dismissal, the Courts may simply refuse to grant the dismissal in much the same way that a D.C. District Court denied a similar motion in the case of former National Security Advisor Michael Flyn; a case that was eventually terminated with a presidential pardon.

Additionally, dropping the current prosecution may leave the door open for a future administration or prosecutor to restart the trial at some later date. A pardon, on the other hand, unequivocally shuts the door on one of the key sources of rancor in American politics the way that no other act could. The exercise of the pardon power, a power that has gained even more significance as a unilateral presidential power as it has become disused, in the present circumstances sends one of the strongest constitutional signals possible that the president is dedicated to a particular course of action. Pardons have a decisiveness and finality like virtually no other presidential action.

At this junction, during the presidential transition period, our nation may be in just the kind of political jam and at just the “critical moment” that Hamilton argues the pardon may prove an integral constitutional mechanism for political maintenance.