Vail Law column: The constitution and the president’s power to pardon
August 1, 2017
Editor's note: This is the first part of a two-part series.
When a priest seeks forgiveness, he tracks down another priest to intercede for him. When a rabbi pursues absolution, he beseeches it of God. Yom Kippur is a good time for such a heart-to-heart. When this president angles for a pardon, he makes an appointment with … himself?
This is the latest in the seemingly endless new precedents from this unprecedented president.
Deep breath now.
It seems the president has come to the ripe conclusion that he may exercise the presidential power to pardon in favor of his friends, family and even of himself. He needs only to see himself to … pardon himself? Keeping in sight, of course that, according the president, neither he, his friends or family have done a darn thing wrong and there is nothing to pardon in the first place.
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Let's toss this under the microscope for a quick forensic peek.
Consulting with Merriam-Webster, the word "pardon" means "the excusing of an offense without exacting a penalty," "a release from the legal penalties of an offense," "an official warrant of remission of penalty," or "excuse or forgiveness for a fault, offense or discourtesy; 'I beg your pardon.' 'She asked my pardon for taking up so much of my time'."
Let's focus on this last bit; "I beg your pardon." And now let's insert the president; "I, the president, beg your, the president's, pardon," or "He, the president, asked my, the president's, pardon for taking up some much of his, the president's time." It rings a little odd, wouldn't you agree?
Pardoning, at least in my humble estimation, presupposes that you are asking someone — or some power — other than yourself for exoneration. But more on that later.
Let's move on.
What the constitution says
Like most things constitutional, what it has to say is an exercise in brevity. Article II, Section 2, Clause 1 provides that, "The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Yup, that's it. But keep your eye on that last nasty bit —impeachment — as it factors into how the power to pardon was ultimately adopted.
Before we land on Constitutional interpretation of the power, however, let's run this first around the mulberry bush of history.
The presidential power to pardon was derived from the royal English Prerogative of Kings, which dated from before the Norman invasion (1066). The royal power was absolute. For many years, Parliament tried limit the breadth of the king's pardon power, and finally it succeeded — at least to some degree — in 1701, when it passed the Act of Settlement, which exempted impeachment from the royal power.
During the American period of the Articles of Confederation, which predated the Constitution, the state constitutions conferred pardon powers to varying extents upon their respective governors. That notwithstanding, neither the "New Jersey Plan" nor the "Virginia Plan" presented at the Constitutional Convention included a pardon power for the chief executive.
On May 29, 1787, South Carolina's delegate, Charles Pinckney, introduced a proposal to give the chief executive the same pardon power as enjoyed by English monarchs; to wit, complete power with the exception of impeachment. Eerily prescient, Virginia's George Mason argued that the President's pardon power, "may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit (a) crime and thereby prevent a discovery of his own guilt."
The impeachment exception
Pennsylvania's James Wilson, however, carried the day, answering that pardons for treason should be available and that impeachment was available if the president himself was involved in the treason. A proposal for Senate approval of presidential pardons was also teed up and defeated.
In "The Federalist No. 74," Alexander Hamilton argued in favor of the presidential pardon, holding that, "humanity and good policy" require that "the benign prerogative of pardoning" was necessary to mitigate the harsh justice of the criminal code.
The pardon power, Hamilton maintained, "would provide for "exceptions in favor of unfortunate guilt." Hamilton's defense of the presidential power reflects at least one of its purposes; to temper justice with mercy in appropriate cases, and to do justice if new or mitigating evidence comes to bear on a person who may have been wrongfully convicted.
Chief Justice John Marshall, fourth Chief Justice of the United States Supreme Court, also had something to say on the subject. In United States v. Wilson (1833) he endorsed the benign aspects of the pardon power. "A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate …."
Another purpose of the pardon power focuses not on obtaining justice for the person pardoned, but rather on the public policy purposes of the government. James Wilson argued during the Constitutional Convention that, "pardon before conviction might be necessary in order to obtain the testimony of accomplices."
Public policy purposes were echoed by Justice Oliver Wendell Holmes, an oft-cited, and esteemed Associate Supreme Court Justice, in Biddle v. Perovich (1927), wherein, he noted that, "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme."
In Part 2, a bit more history, then emplacement of the pardon power in the Constitution and, last, a little scholarly interpretation of what it all means and whether, in searching his conscience and holding a dialogue with himself, the president may, in fact, absolve himself of any conceivable wrongdoing.
Rohn K. Robbins may be reached at 970-926-4461 or at Robbins@SLBLaw.com.