The History behind the Headlines: Presidential Pardons

One of the fascinating ongoing stories of the Trump administration is the frequency with which his associates found themselves convicted of crimes. One of the first was former national security advisor Michael Flynn, who pleaded guilty to lying to the FBI in the course of the investigation into Russian interference in the 2016 US election. The president, via Twitter, announced on November 25 that he had granted Flynn a full pardon. Previous Trump pardons include controversial former Arizona sheriff Joe Arpaio. He also commuted the sentence of advisor and friend Roger Stone, also convicted in the course of special counsel Robert Mueller’s Russia investigation. While the president can use the pardon at his or her discretion, the pardon of Flynn raised some eyebrows. Critics, especially high ranking Democrats, have suggested that Trump has used his pardon power to reward those who lied on his behalf. More pardons are expected in the final weeks of the Trump presidency, many of which will surely raise the ire of those eager to find fault with the president’s actions. Trump’s pardons, while unsavory, pale beside some past pardons.

The earliest high profile pardon was by George Washington on the final day of his tenure. Washington pardoned leaders of the Whiskey Rebellion, a tax protest led by veterans of the Revolutionary War. In need of funds to pay war debt, the federal government taxed the production of spirits. Whiskey was rapidly growing in popularity, and farmers on the western frontier often converted surplus grain into whiskey. Believing themselves to be fighting for the principles of the Revolution, especially against taxation without sufficient representation, farmers violently resisted the new tax. Despite thousands of participants, many of whom were captured, only two were convicted of treason. Washington pardoned them, wrapping up this early challenge to federal authority.

The most controversial use of the pardon was at the end of the Civil War. It was a time of intense division. Though the war was over, and slavery with it, the strong feelings and beliefs that led Americans to take up arms against one another did not disappear. By definition, every Confederate survivor had committed treason, and was thus subject to execution. While only the most bloodthirsty northerners sought capital punishment, there was certainly strong sentiment in favor of harsh punishments. Abolitionists and others with incentive to see southern society destroyed saw this as their moment to make the defeat a total one, to completely impose a northern way of life on the south. Others, especially president Andrew Johnson, wondered how best to move forward in what was still a united nation. Despite having been defeated, southerners still held onto their pride, and to insult that pride by adding punishment to defeat could only further alienate them. After four years of war, many preferred peace over punishment. It is also important to bear in mind the racist motivations for reconciliation; slaves were freed as part of the war, but very few in the north actually cared about the fate of the new freemen, and fewer still wanted responsibility for the freed slaves. Who better to take on this responsibility than those who already had it? The effect on Blacks of allowing former Confederates to walk free was easily secondary to the desire for peace and reconciliation. Johnson declared a general amnesty, exceptions to which included Confederate government officials and those who left the federal armed services to join the Confederacy, among others. Those who did not qualify for the general amnesty were still able to request a special pardon, and the Johnson administration devised an oath each applicant was required to swear in order to receive their pardon. Johnson’s sweeping pardons succeeded in creating a path to a reunified nation, but papered over many of the underlying issues, especially race relations, some of which continue to divide Americans today. 

The most notorious presidential pardon was certainly that of Richard Nixon by Gerald Ford. Nixon had not yet been convicted of any crimes, but had been forced to resign in the wake of the Watergate scandal. Ford unconditionally pardoned Nixon of any and all crimes he may have committed against the United States while president. Similar to Johnson’s pardons of Confederates, Ford claimed that his pardon of Nixon was in the best interest of the nation. Ford justified his pardon by the 1915 Supreme Court case Burdick v. United States, the decision of which stated that a pardon carries an imputation of guilt, and therefore its acceptance carries a confession of guilt. Ford pardoned Nixon despite knowing it would be unpopular. While Nixon’s crimes were not particularly heinous, he was the first, and to this day the only, president to have been caught “red-handed” in clearly illegal conduct while holding the office. It was a tremendous offense against Americans’ ideas of the integrity of the office of the president, and it was perhaps Nixon’s apparent lack of respect for the office that angered people more than the acts themselves. The prestige of the office, and the faith Americans placed in that office, took damage that has not yet been repaired.

The power of the presidential pardon may soon see its ultimate test, as there is significant speculation that Trump may pardon himself before leaving office. Debate among experts over the legality of such a move is often overshadowed by distress and disgust that a president would consider pardoning himself, a notion that seems more at home among third world dictatorships than in the United States of America. Trump’s allies rightly point out that there is no limitation placed on the power to pardon, and nothing in the Constitution or in any legal precedent states that he cannot pardon himself. Since the president can only pardon for crimes against the United States, and has no power over state crimes, Trump remains vulnerable to his current legal trouble in New York, and elsewhere.