A substantial part of his case rested on the view that clemency would be especially important during, and after, insurgencies and rebellions.
As he explained in Federalist 74: “The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason…. [T]here 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….”
Hamilton’s linking of the pardon power and times of domestic discord drew on a line of thinking that can be traced to similar discussions in Great Britain during the 16th century reign of Queen Elizabeth I. Those discussions focused on whether the monarch would need the assent of Parliament to grant pardons to traitors or rebels. Hamilton’s position reflected the resolution of that debate in favor of leaving that power to the head of state.
It wasn’t long after he wrote Federalist 74 that Hamilton‘s view of the wisdom of pardoning traitors and rebels would be put to the test. On Nov. 2, 1795, President George Washington used the president’s clemency power for the first time to pardon two men who had participated in the so-called Whiskey Rebellion, the first major instance of civil strife to take place after the ratification of the Constitution.
Washington intervened to prevent the hanging of two Pennsylvania farmers and distillers who were convicted of treason for taking part in violent resistance to the collection of an excise tax on liquor. The tax had been championed by none other than Hamilton, then the secretary of the Treasury.
As Washington reported to Congress in an address delivered barely one month after the pardons: “The misled have abandoned their errors” because of his willingness to show “every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”
President Abraham Lincoln also followed the Hamiltonian playbook when he used his pardon power during the height of the Civil War. As Andrew Glass described it in TheTeCHyWorLD: “During his presidency, Lincoln issued 64 pardons for war-related offences: 22 for conspiracy, 17 for treason, 12 for rebellion, nine for holding an office under the Confederacy, and four for serving with the rebels.”
Lincoln’s successor, President Andrew Johnson, carried on Lincoln’s effort to heal the wounds of war when, on Dec. 25, 1868, he granted a complete and unconditional pardon “to all and to every person who directly or indirectly participated in the late insurrection and rebellion…for the offense of treason against the United States.” He restored to them their full civil rights, including their right to vote and with that hoped to alleviate some of the sting of their defeat.
This bold exercise of presidential prerogative was, in Johnson’s hands, not simply a noble act. It also was motivated by his hope that the blanket pardon would serve as a bulwark against the possibility that freed Blacks might be able to obtain significant political power in the post-Civil War South. One could hear a nod to this history in Trump’s Texas speech.
The Hamiltonian practice of showing mercy toward people who take up arms against the United States was carried on by President Theodore Roosevelt, who pardoned Servillano Aquino y Aguilar in 1904. Aguilar was a leading figure in armed hostilities against Americans in the Philippines, and Roosevelt hoped that pardoning him would calm tensions.
Fast forward to 1977, and we can see President Gerald Ford’s use of the pardon power to heal the nation not just in his controversial pre-emptive pardon of Richard Nixon, but in his less well known grant of clemency to a Japanese-American woman named Iva Toguri, the notorious “Toyko Rose.” Toguri had been charged with treason for broadcasts aimed at undermining American morale during World War II. Ford showed her mercy as a belated gesture of reconciliation with Japanese-Americans who had been persecuted for purported disloyalty during the war.
From Washington to Ford and beyond, presidents have taken seriously Hamilton’s injunction to use the clemency power to “restore tranquility to the commonwealth.” Not so Donald Trump. His gesture would literally stoke division for his own gain, rather than helping quiet any unrest — precisely the opposite of the way the Founders saw the pardon.
To date, 768 people have been charged with crimes arising from the events that unfolded as the Congress met to count the Electoral College votes for president and vice president. They include 11 people charged in January with seditious conspiracy to overthrow the government. Investigations by the House Select Committee on Jan. 6 and the U.S. Department of Justice are likely to more arrests and indictments.
During his term in office, President Trump frequently used his presidential pardon power to help loyal allies skirt the legal repercussions of serving his personal interests — Steve Bannon, Paul Manafort and others. His dangling the possibility of pardons last week does much the same thing, and also throws red meat to his base, stokes their continuing sense of grievance and deepens divisions, which has been his stock in trade since his entrance into public life. It’s perfectly in keeping with his playbook — and a complete betrayal of the vision of the president’s clemency power which has served America well for so long.