We’ve been hearing a lot about pardons of the presidential sort. Both former President Biden and President Trump have used, some would say abused, their power to pardon. A couple of clarifications and then an observation:
- The pardons appear to be constitutional, Article II reading in part, “The President …shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” For our purposes, we will use the term pardon, understanding it to mean both reprieve (think a commuted sentence) and pardon. We may not like them, but presidential pardons are not against the law. In Federalist #74, Alexander Hamilton, with Shay’s Rebellion in mind, thought a presidential power to pardon might be helpful as a strategy to insure domestic tranquility. Again, while the recent pardons seem to have done little to insure domestic tranquility, they are allowed by the Constitution.
- Just because they pass constitutional muster does not mean we have to like them. Most objective scholars and commentators agree that among the pardons issued by both recent presidents are cases of shameless partisan politics and grievous reversals of justice. If you’d like to argue whose pardons are more grievous or which pardoner is more corrupt, please go to your favorite social media site to do so.
- Presidential pardons are not unusual, even if the recent ones seem unusually unsavory. By one estimate the total number of presidential pardons granted since the Constitution was ratified may exceed 40,000. Lincoln’s pardon of Patrick Murphy pictured in the header was granted to a mentally disabled private sentenced to death for desertion. Not unsavory at all.