In the earliest days of the Republic, Alexander Hamilton defended giving the president the exclusive authority to grant pardons and reprieves against the charge that doing so would concentrate too much power in one person’s hands. Reading the news of President Trump’s latest use of that authority to reward his motley crew of election deniers and misfit lawyers, I was taken back to what Hamilton wrote in 1788.
He argued that “The principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well- timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
“The dilatory process of convening the legislature, or one of its branches,” Hamilton continued, “for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity.”
Never did Hamilton imagine that the Chief Magistrate would one day be the insurrectionist-in-chief and that he would use the clemency power to spare his fellow insurrectionists, people like Rudy Guiliani, Trump’s lawyer during the 2020 election fight; Mark Meadows, his former chief of staff; Sidney Powell, Jenna Ellis and John Eastman who played key roles in concocting and carrying out the scheme to keep Trump in power.
The president also granted clemency to “all United States citizens for conduct relating to the advice, creation, organization, execution, submission, support, voting activities, participation in or advocacy for or of any slate or proposed slate of presidential electors … as well for any conduct relating to their efforts to expose voting fraud and vulnerabilities in the 2020 presidential election.”
MSNBC’s Hayes Brown gets it right when he says, “Trump has been moving to rewrite history, in effect declaring that there was nothing shady at all about his plotting.”
There is little citizens can do to prevent the president from abusing his clemency power. But it is the responsibility of everyone who values constitutional order to resist this effort to rewrite history. That means making sure that schools, libraries, and museums accurately convey the truth about what happened when the president and his allies conspired to overturn an election.
Before looking at Trump’s latest gambit to whitewash history and turn the story of an insurrection into a glorious affirmation of democracy, let me say more about Hamilton’s thoughts about the pardon power.
Hamilton had the difficult job of convincing his countrymen that it was better to give the president the prerogative that had heretofore been vested in monarchs instead of in the legislature or a council of wise people. As he argued, “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
Hamilton believed that giving the pardon power to a single person would encourage a “sense of responsibility” in its use. He hoped that “The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution…” in the president.
As smart as Hamilton was, I guess one cannot fault him for not anticipating that America would one day be led by someone like Donald Trump.
Having just lived through Shays Rebellion, an uprising in Massachusetts in response to a post-Revolutionary War debt crisis, Hamilton worried that treasonous sentiments in the populace would more likely be shared by the representatives of the people in Congress than by the president. He didn’t foresee a situation where a president like Trump would foster such sentiments in the people, as a way to hold onto power.
As the commentator, George Cassidy Payne notes, “Hamilton’s writings suggest that the pardon power should be reserved for extraordinary circumstances where the public interest is paramount.” It turned out that Hamilton did not think that George Washington’s first use of the pardon power in 1795, to spare participants in another domestic uprising, was one of those circumstances.
Hamilton’s hopes have informed the way others have understood the president’s clemency power. The Supreme Court has said that clemency is not a “private act of grace.” It is “part of the Constitutional scheme,” and should be used to further “the public welfare.”
Well, there is nothing about what the president did for Giuliani et al. that furthers “the public welfare,” despite protestations to the contrary. The pardons didn’t even offer much help to their recipients.
As the Washington Post explains, “(N)one of the more than 75 people listed has been charged with federal crimes, though several have been prosecuted in states including Georgia, Arizona, Michigan, Wisconsin, and Nevada for roles in the alleged scheme to submit fake electors during Congress’s ratification of the 2020 vote. As president, Trump has no authority to pardon people facing state-level charges.”
“Still,” the Post adds, “the clemency — granted to key figures who have faced years of scrutiny by local prosecutors, congressional committees and local bar associations — signaled Trump’s continued focus on relitigating his 2020 defeat and furthering false claims of widespread voter fraud in current elections.”
Recall the president’s earlier decision to pardon more than 1,500 people who participated in the January 6, 2021, attack on the Capitol, and you get a sense of Trump’s ambition to turn criminals into heroes while vilifying the Biden Administration. Karoline Leavitt, the president’s press secretary, made that clear when she said about those who received pardons, “These great Americans were persecuted and put through hell by the Biden Administration for challenging an election, which is the cornerstone of democracy….”
“Getting prosecuted for challenging results is something that happens in communist Venezuela, not the United States of America, and President Trump is putting an end to the Biden Regime’s communist tactics once and for all.”
In a statement accompanying the pardons, Edward Martin, who Trump appointed as the government’s Pardon Attorney in the Justice Department, expanded on Leavitt’s bogus claims. “For over 200 years, this nation held elections as our framers envisioned… whoever prevailed, citizens could be confident that their votes would count without dilution or diminishment.”
“This proud tradition died in 2020. For the first time in American history, partisan state and local officials relying on narrow exceptions for absentee voting and signature verification attempted to conduct a fully remote presidential election…. At the same time, biased media failed to accurately inform the American people of the unlawful actions taken to deprive our country of a free and fair election.”
Martin’s statement reads like a summary of President Trump’s greatest hits. It goes on for pages rehearsing baseless allegations of voting irregularity in Wisconsin, Michigan, Arizona, Pennsylvania, Georgia, New Mexico, and Nevada. It details the alleged failures of the Biden Justice Department to investigate fraud and misconduct in the 2020 election.
Martin defends the Trump campaign’s fake electors’ scheme, calling them by another name, “contingent electors.”
He argues that state-level prosecutions of the president’s co-conspirators are “Attempts by partisan state actors to shoehorn fanciful and concocted state law violations onto what are clearly federal constitutional obligations of the 2020 trump campaign.” Martin’s statement concludes that “a pardon recognizing the complete exoneration of the contingent electors and all who have been swept into this unjust vendetta against President Trump is appropriate and fully serves the interest of justice.”
The justice Martin speaks of is Trump-style justice. The president and his allies aim to utilize all the levers of the government, including pardons and the accompanying proclamations, to ensure that history will overlook the truth.
Such an effort has no place in a democracy. If citizens do their part, the president and his enablers will fail in their effort to portray what they did in 2020 as something other than an insurrection.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
