We’ll soon see whether Donald Trump makes good on his pledge to pardon January 6 rioters on his first day in office. Failing to follow through would betray those on whose behalf he promised to exact retribution. But exercising what Alexander Hamilton called “the benign prerogative” for supporters convicted of seditious conspiracy, assaulting federal officers, and theft would represent a uniquely perverse use of presidential pardon power. Perhaps, as Trump mused at the end of the year, he’ll split the difference, sparing those he’s characterized as peaceful protestors but not those who committed the worst of the violence. As long as most of the rioters are “exonerated,” he’ll still have made his point.
Is the case of “J6,” as Trump revealingly referred to the insurrection in his debate with Kamala Harris, something the founders could have foreseen when giving presidents broad power “to grant Reprieves and Pardons”? The question acquired fresh resonance when Joe Biden pardoned his son Hunter, something he had promised not to do. But controversy arises almost every time a president exercises the privilege—whether it was George H. W. Bush’s pardons of Iran-Contra felons in 1992, Jimmy Carter’s blanket pardon of hundreds of thousands of Vietnam War draft evaders on his first day in office (fulfilling a campaign promise he had made), or Gerald Ford’s pardon of Richard Nixon in 1974. George Washington himself was criticized for pardoning participants in the Whiskey Rebellion, and Abraham Lincoln for offering pardons to members of the Confederacy who “would resume their allegiance to the United States.”
There are important differences among these cases, as scholars point out. For one thing, the motives of the pardoner varied. Washington and Lincoln were acting within the constitutional scheme of quelling civil unrest and “preserving the tranquility of the commonwealth” (as Hamilton had described one purpose of pardons). Trump, however, could be licensing future MAGA insurgencies by pardoning January 6 rioters. In pardoning Caspar Weinberger and other Iran-Contra figures, Bush blocked further investigations and legal proceedings, thus sparing himself from having to testify about his own role in the scandal. Carter believed he was helping heal the nation’s psychic wounds from the Vietnam War. Ford, vilified for putting Nixon beyond the reach of the law, was also commended for trying to unify the country in the aftermath of Watergate.
It’s worth asking whether presidents should have pardon power at all. Mercy and forgiveness are virtues, and it reflects well on a nation when its leader exercises compassion, as Biden did in issuing clemency to 1,500 low-level offenders in December. But the justifications for this extraordinary power presume that a president won’t abuse it—by pardoning himself, for example, or by encouraging lawbreaking on his behalf. Little wonder that on the cusp of a second Trump presidency there are renewed calls for pardon reform. One such proposal would establish a federal clemency board; another would amend the Constitution to prevent presidents from pardoning themselves, family members, and administration officials.
But it is safe to assume at this point that every constraint on presidential power will eventually be tested. A 2021 Harvard Law Review article speculated about conditional pardons: imagine a president promising to release imprisoned felons if they vote for him and throwing them back in jail if they don’t, or pardoning a healthy prisoner on the condition that the prisoner donate an organ to a member of the first family. “Some hypotheticals seem more plausible than others,” the authors grant, “but history teaches us to take seriously the hard boundaries of executive power, especially where its exercise could be catastrophic.” Once again, catastrophe looms.
