Immanuel Kant, writing less than a decade after the U.S. Constitution gave our president an almost unlimited power to grant pardons, wrote that “of all the rights of a sovereign, the right to grant clemency to a criminal…is the slipperiest one for him to exercise; for it must be exercised in such a way as to show the splendor of his majesty, although he is thereby doing injustice in the highest degree–with regard to crimes of subjects against one another it is absolutely not for him to exercise it; for here failure to punish is the greatest wrong against his subjects. He can make use of it, therefore, only in case of a wrong done to himself…This right is the only one that deserves to be called the right of majesty” (Metaphysics of Morals, Doctrine of Right, Part II, #49).
Our current president has just exercised his pardon prerogative for the first time by commanding amnesty for former Maricopa County, Arizona Sheriff Joe Arpaio, who was convicted of criminal contempt earlier this summer for ignoring a federal court order to cease arrests based on racial profiling. Arpaio had not yet been sentenced, so the pardon short-circuited both the juridical process and the work of the Justice Department pardon attorney. The pardon is irreversible from a legal point of view, but our First Amendment also permits me to give my opinion that the president’s action was the opposite of majestic and has irreversibly dimmed the splendor that could have belonged to him. Instead of displaying the splendor of his majesty, he slipped and fell into an underworld of shadows. He confirmed the fears of the founders who feared during the debates of 1787 and 1788 that the executive pardon power could be abused in just the way we saw yesterday.
From Kant’s ethically rigorous vantage point, Trump’s pardon of a political ally was utterly knavish, not at all kingly (or “very presidential”). The concerns of founders (some of whom were antifederalists) such as “Centinel” (Samuel Bryan of Pennsylvania) and Luther Martin of Maryland regarding the pardon power were rigorous in a different sense. Their rigorous thoughts were in the domain of prudential politics. They were worried about the dangers to civil society of unchecked presidential pardon power. “Centinel” proposed in the Philadelphia Freeman’s Journal of October 24, 1787, a “small council” without which the “chief magistrate could abuse his authority, “for as it is placed [solely in the president] he may shelter the traitors whom he himself or his coadjutors…have excited to plot against the liberties of the nation.” Is it hyperbolic to worry that our president might “shelter traitors” he himself has riled up in order to weaken our constitutional liberties? How many of us are unwilling to give our president yet another benefit of the doubt, when he seems to enjoy unchecked powers a whole lot more than working with anyone in Congress on actual nitty-gritty and possibly unpopular details of any issue at all? Here’s what Luther Martin worried about in “The Genuine Information” (Not Fake News, that is), published in the Maryland Gazette, January 29, 1788: “the power given to the president of granting reprieves and pardons, was also thought extremely dangerous, and as such opposed–The president thereby has the power of pardoning those who are guilty of treason…it was said that no treason was so likely to take place as that in which the president himself might be engaged–the attempt to assume to himself powers not given by the constitution, and establish himself in regal authority–in which attempt a provision is made for him to secure from punishment the creatures of his ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution.” Did Luther Martin foresee what happened in last year’s election? Did he know the names of Paul Manafort and Felix Sater and Kislyak and Putin? Of course not–but I can imagine he knew people like them. The Arpaio pardon, legal but knavish, is not the big problem; the big problem is what might come next.
Federalist par excellence Alexander Hamilton saw (Federalist paper #74) reasons for and against the exclusively presidential pardon power. For: “it is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever.” But also against: “the supposition of the connivance of the Chief Magistrate [in crimes of treason] ought not to be entirely excluded.” Hamilton in his wisdom is telling us, I think, that no formula or text or even “norm” is guaranteed to give us good outcomes or to protect us against a corrupt executive devoid of conscience. Are we there yet?