The unfettered presidential pardon should have no place in our legal system

The presidential pardon is suddenly the center of political discourse: President Biden’s pardon of his son Hunter; President-elect Trump’s vow to pardon the January 6 defendants; President Biden’s threat to pardon everybody who lies in the path of Trump’s coming crusade of retribution.

Of course, it’s easy to criticize any and all of these alleged acts of “mercy.” Biden climbed onto the high moral ground by announcing his refusal to pardon his own son — until, oops, he slid back into the ethical murk. And yet that action bears no comparison, in degree of moral squalor, to Trump’s planned pardon of January 6 defendants, who attempted to halt the transfer of power by extra-legal means.

This all makes me feel like the child who sees the obviously naked emperor and asks why he’s wearing no clothes. Why, I keep thinking, does no one notice that the entire idea of a presidential pardon is absurd in a political system founded on the rule of law?  Perhaps that’s because it’s been right there in Article II of the Constitution since 1789, and is therefore assumed to be as inevitable as gravity. 

But the fact that it’s been around for 240 years does not insulate it from examination.  And I submit that if we set aside tradition and actually think about it, we quickly see that the unfettered presidential pardon should have no place in our legal system.

The founders did not invent this idea in the late 1700s. Quite the opposite: the sovereign’s “prerogative of mercy” is a vestige of the medieval world that was supposedly left behind by the Enlightenment. Arbitrary royal power was replaced by law and process. Indeed, the young nation clinging to the eastern seaboard of North America was famously animated by these new ideas, and we’ve been patting ourselves on the back about it ever since.

Why, then, would the American colonists have inserted this divine right of kings into our bold new plan of government? Didn’t they hate monarchy, having just fought a war to release themselves from its strictures? 

Perhaps we have forgotten that the American colonists were human — and British. Much as they attempted to discard the past, they were steeped in British laws and customs. While proclaiming to abhor monarchy, the founders simply accepted as received wisdom that our new president must have a role similar to kings since the dawn of history — that is, the dispenser of mercy that supersedes all law and procedure.

It was (I’m sorry to say) Alexander Hamilton who introduced the concept at the Constitutional Convention in 1787. And in the Federalist No. 74, he articulated the most common theory, then and now, to justify this strange carry-over from the dark ages:  “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.” In modern language: legal processes are fallible; people make mistakes, and the consequences can be severe; so we need a safety valve to correct rank injustice that occasionally occurs despite our best efforts.

So far, so hard to argue with. But he continues: “As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law….” That is, the president, acting alone, is best suited to mitigate occasional injustice.

And why, you might ask, is the power best “undivided” — i.e. given to the president alone? Here, Hamilton dons his proto-pop-psychology hat to explain: “The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection…” 

Oh, I see. The president would feel the weight of this awesome power and therefore use it only with caution. Compared with a group of men, who might “encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency.”

Seriously — that’s why this section is in our Constitution. I don’t have to recite what happened in the ensuing 240 years. Suffice it to say that “scrupulousness” and “caution” are not words one would use to describe almost any pardon granted by any president, ever.   

The most striking aspect of this history is the ease with which the founders simply abandoned faith in their own mission, which was to create a nation of laws, not men (yes, it was only men at the time). When confronted with a knotty problem — the understandable need for a system of clemency — they circled back to what they knew without even trying to find a modern solution. (I deeply admire Hamilton and Hamilton!, but nobody’s perfect.)

Perhaps that was understandable in the 18^th century, though the cognitive dissonance did not go unnoticed even then. As William Blackstone observed in his famous commentaries on English common law (Volume IV, 1769): “In democracies, this power of pardon can never subsist.” Unfortunately, it subsisted all too easily. In this sense, it is something like the human appendix: a feature that functioned in an earlier era but stubbornly remains only as a locus of infection, occasionally wreaking havoc on our modern body politic.

I don’t dispute the need for some sort of pardon system. But bestowing this unlimited power on the president alone was a serious mistake. We constantly trumpet our faith in the rule of law, contrasting our system with autocracies that run on subjective power rather than process. Indeed, our criminal justice system is a labyrinth of procedure, safeguards, and layers of appeal (not to mention our entire government structure based on checks and balances).

But then, with a stroke of a pen, we bypass this carefully wrought system, and allow the president of the United States to dispense “justice” unilaterally, for any reason. It’s as bonkers as the naked emperor, but everyone is afraid to say it out loud.

In my view, pardons should be granted only after intense review against an established set of criteria, and only after a decision by a body that is as independent as we can make it. Yes, I hear the objections: wouldn’t another body be subject to corruption? Isn’t this just like adding another layer of appeal? My response is: sure, it would be hard, and imperfect, like everything else in a democracy. But anything we could fashion would improve on the trail of presidential pardons that gets more outlandishly arbitrary and dangerous with each new president.

The final objection is always: But it’s in the Constitution, we’re stuck with it. To which my standard reply is: tell that to the women who began fighting for what became the 19^th Amendment in the 1840s and finally succeeded 70 years later. The best time to start any decades-long project was decades ago. The second-best time is now.

Stephen Bubul of Minneapolis is a retired attorney who practiced in the areas of housing and redevelopment and related public law. He has an enduring interest in Constitutional law.

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