Adler: Framers: Integrity and impeachment will temper use of pardon power
English history was constantly before the eyes of delegates to the Constitutional Convention as they stressed about the exercise of the presidential pardon power.
Kings had abused the pardoning authority for corrupt ends. They sold pardons to those who could afford them and, on occasion, sought to screen from parliamentary inquiry those whom they had instigated to violate the law. The historical practice, it seemed to the Framers, constituted a parade of horribles.
What, then, persuaded the Founders – a generation that lived in dread fear of an expansive, undefined executive power – to vest in one man a seemingly unbridled authority with potentially disastrous implications for the nation? From the Framers’ perspective, the exercise of the power itself provided sufficient restraints on the president.
In Federalist 74, Alexander Hamilton stated: “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, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.” The weight of the responsibility, he added, would “inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection.”
Hamilton’s belief that presidential integrity would constrain the exercise of the pardon power, however, was not sufficient to convince him during debates in Philadelphia to extend the power to acts of treason, without approval of the Senate. Whether the president should be empowered to grant pardons for treason was particularly troublesome for the Framers, and it provoked an impassioned debate on the scope of the authority that was not resolved until the last days of the Convention.
Edmund Randolph shared Hamilton’s concern and moved to exclude treason from the scope of the pardon authority. In rhetoric that stirred images of a presidential coup, he warned: “The President himself may be guilty. The traytors may be his own instruments.” George Mason agreed with his fellow Virginian and framed his objection in words that echoed English history. The power “may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime and thereby prevent discovery of his own guilt.”
Against this nightmare, the subversion of the Republic by pardons, James Wilson of Pennsylvania asserted the need for the availability of pardons for treason to extract confessions from those engaged in rebellion. In a speech that assuaged the Convention’s concerns, Wilson explained that if the president were involved in treason, he could be “impeached and prosecuted.”
Every warning that a president might use the pardon power to exonerate accomplices, to forestall investigations, and generally to subvert law and government was met with assurances that the threat of impeachment – “the terror of punishment” – would prevent such misconduct. These guardrails – impeachment and prosecution – in addition to Hamilton’s emphasis on the integrity and accountability of the executive, persuaded the Convention that the pardon authority should encompass acts of treason.
Despite the Framers’ fears, there was no getting around the need for the existence of the power to temper miscarriages of justice and to quell rebellions, as demonstrated by the effectiveness of the gubernatorial pardons to participants in ending Shay’s Rebellion in Massachusetts. As an executive tool, the pardon might secure justice, but it might also be a handmaiden of tyranny.
In drafting the Constitution to create a government, to borrow from the delegates, in which men would govern men, it was true then, as it will always be true, that there is no substitute to electing candidates with integrity. A blueprint can only go so far.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and Presidential power. Adler’s column is supported in part through a grant from Wyoming Humanities funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by Andrew W. Mellon Foundation. Adler can be reached at david.adler@alturasinstitute.com.