Robbins: The president’s power to pardon
Once again, the ex-president finds himself in a thicket of nettles. Only this time, some of them might stick. Specifically, he’s been indicted in two state courts (New York and Georgia) and two federal districts (Florida and Washington, D.C.) for alleged crimes, ranging from campaign law violations to mishandling of classified documents to racketeering to trying to subvert our democracy itself. In all, 91 felonies have been leveled against him.
But, who’s counting?
Some think his whole bid for reelection (this time anyway) is, if he wins, to have an ace in the presidential hole. Even if this conviction thing doesn’t work out so well, he may be thinking, he can exercise the presidential pardon power to afford himself a mulligan.
Or can he?
Whatever your feelings are about the ex, whether he can pardon himself is — as you might expect with Trump — unprecedented. In short, we have never before had a convicted felon in the White House and, if we do in 2025, what then?
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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 so much of his, the president’s time.” It rings a little odd, wouldn’t you agree?
Pardoning, at least in my estimation, presupposes that you are asking someone — or some power — other than yourself for exoneration. But more on that later.
What, though, does the Constitution have to say about this?
Like most things constitutional, what it has to say is an exercise in authorial brevity. Article II, Section 2, Clause 1 provides that, “The President … shall have Power to grant Reprieves and Pardons for Offences {sic} against the United States, except in Cases of Impeachment.” Yup, that’s it.
Before we land on the constitutional interpretation of the power, however, let’s run this first around the mulberry bush of history.
During the American period of the Articles of Confederation which predated the Constitution, 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.
In May, 1787, South Carolina’s delegate, Charles Pinckney, introduced a proposal to give the chief executive 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.”
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.
As a quick aside, during the ex-president’s last stint in office, we saw how that whole impeachment thing went — twice — when divided almost strictly upon party lines.
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, the fourth chief justice of the United States Supreme Court and who most credit with shaping the modern functions of the 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 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 my next column, I’ll examine this question: Could Trump, if he were reelected, in fact, grant himself a pardon?
Before we get there, though, we’ll look at the emplacement of the pardon power in the Constitution, a bit of scholarly interpretation, the distinction between state and federal crimes, and whether, in searching his conscience and holding a dialogue with himself, the president may, in fact, absolve himself of any conceivable wrongdoing … 91 assorted potential felonies included.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
