The Divine Economy of the Pardon Power
A 25-year-old Japanese American girl from Los Angeles, with a talented voice for broadcasting on the radio. A 59-year-old Revolutionary War veteran from Connecticut, former Governor of the Michigan Territory, and general in the War of 1812. A 35-year-old Black man from Texas and former heavyweight boxing champion of the world. A 38-year-old New Yorker, newspaper publisher, and Zionist. A 42-year-old Ohio man and iconic owner of one of the most successful baseball clubs in major league history. A 38-year-old Black divorcee and mother of five from Mississippi. What do all of these Americans have in common?
They were all granted presidential pardons.
Iva Toguiro D’Aquino was pardoned by Gerald Ford for treasonous propaganda broadcasts from Japan as “Tokyo Rose” during World War II. William Hull was pardoned by James Madison after surrendering Fort Detroit to the British during the War of 1812. Jack Johnson was posthumously pardoned by Donald Trump for an unlawful relationship with a prostitute. Hank Greenspun was pardoned by John F. Kennedy for privately shipping arms to Israel in 1947 to aid them in the Arab-Israeli conflict, in violation of the Neutrality Act. George Steinbrenner, owner of the New York Yankees, was pardoned by Ronald Reagan for illegal campaign contributions to Richard Nixon’s reelection effort. And finally, Alice Marie Johnson was pardoned by Donald Trump for her involvement in cocaine trafficking.
The Election of 2024 will partly be about whether Joe Biden should pardon a criminally convicted Donald Trump, or whether a criminally convicted Donald Trump can or should pardon himself. This essay will not try to answer those questions. Rather, I suggest that, even to begin to grapple thoughtfully with such questions, Americans ought to reflect on the constitutional meaning of the pardon power, its historic origins in the English constitution and Christian thought, and how it has been used well in the past.
The pardon power is rooted in Article 2, Section 2 of the Constitution, which states that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” As the wide diversity of the former examples illustrates, this is a presidential power that is well-nigh plenary. In other words, provided the pardonee has committed or is alleged to have committed federal crimes (rather than state crimes), and provided it is not a case of impeachment, the pardon power is extremely broad. The crimes that can be pardoned run the gamut from campaign finance violations, to drug trafficking and prostitution, to treason (some delegates to the Constitutional Convention sought another exception in cases of treason, but this proposal was defeated). The apparently “unrestrained” power to pardon was a reason offered by some Anti-Federalist opponents, such as George Mason, against ratification of the Constitution, . (Scholars are divided on the question of whether the power is so unrestrained that a President can pardon himself—it is beyond our scope to enter into that debate here.)
The exercise of the pardon power is entirely within the presidential purview, in a way that, aside from Congress’s impeachment power, is not specifically checked and balanced against another branch. Contrast, for example, the President’s commander-in-chief and diplomatic authority, also spelled out in Section 2. The Constitution divides authority over foreign policy between the President and Congress. While the President has the sole power to deploy U.S. armed forces, Congress has the power to declare war, and to fund (or not) the armed forces. While the President has the power to negotiate treaties, two-thirds of the Senate is necessary to ratify a treaty. And so on. While Congress can impeach a president for abuse of any of his powers, including nefarious use of the pardon power, Congress has no enumerated power to annul a pardon. Moreover, generally speaking, pardons cannot be overturned by the courts such that normally it is a non-starter to petition the Supreme Court to declare a pardon unconstitutional. As the Supreme Court itself said in a case in the aftermath of the Radical Republicans trying to undo the effect of President Andrew Johnson’s pardons of former Confederates, “To the executive alone is intrusted the power of pardon; and it is granted without limit. Pardon includes amnesty. It blots out the offence pardoned, and removes all its penal consequences.”
The roots of the presidential pardon power can be traced to the English monarchy. In this “Christian kingdom,” as William Blackstone described it, the king’s pardon power was “most personal and most entirely his own.” The purpose of the kingly pardon power, according to Blackstone, was to soften the rigors and severity of the law as the king saw fit. In other words, to administer justice in mercy.
This capacity of executive power can be traced back to roots in the classical and Christian natural law tradition which, I have argued, is a tradition that powerfully influenced American founding political thought.[1] Americans at the Founding by and large believed that the Bible was the word of God and therefore believed Romans 13, where it is said that all governmental authorities are providentially established by God. This provided a fundamental metaphysical-theological grounding for the duty to obey the law. Moreover, it provided knowledge by faith of a proposition knowable by reason in the classical, Christian natural law tradition: namely, that political authority participated in divine justice when it enacted and enforced just laws. The idea was that there was an Eternal Law, God’s rational plan of governance of the universe, which was made known to human beings through two epistemological modalities: unaided reason (the natural law) and faith (supernatural revelation, the Bible). Hence, when law is the product of right reason, i.e., in conformity with natural law, it conformed with the Eternal Law, that is the Eternal Reason of God. This sort of understanding of human justice as participating in divine justice can be traced in the American political tradition from Thomas Jefferson and Alexander Hamilton to Elizabeth Cady Stanton, to Martin Luther King Jr, who cited Thomas Aquinas’s theory of law as justification for civil disobedience to Jim Crow. And it can be traced in presidential rhetoric, including many inaugural addresses, from George Washington—who contended that the “propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained”—to Gerald Ford, who solemnly promised to “do what is right as God gives me to see the right.”
So much for justice—but what about mercy? Jesus memorably taught, “Forgive as you have been forgiven.” How can mercy be compatible with justice? Aquinas framed this as a question about God’s character. How could God be both just and merciful, if mercy is a relaxation of the demands of justice? In reply, Aquinas pointed out that someone who owes another one hundred pieces of money, then pays him two hundred, does not act against justice, but acts liberally. Similarly, to forgive someone for an offense is a sort of gift: something more than justice, but not violative of it. In the traditional Christian understanding, God thus acts justly when he distributes benefits to his creatures proportionally, according to their kind and rank. And when God goes “above and beyond” justice in imparting benefits, when such benefits dispel defects in the creature, God acts mercifully.
In this way, the classical and Christian tradition understood the Executive Office as having a sort of share in the divine economy of justice and mercy, when the president executes just laws and grants pardons.
In perhaps his greatest act of statesmanship whilst president, Gerald Ford framed his decision about whether to pardon Richard M. Nixon in light of the divine economy of justice and mercy. For Ford, the Constitution was the fundamental positive law of the land, but it was not the highest law: “the laws of God, which govern our consciences, are superior to it.” Echoing his inaugural promise to see the right as God enabled him, Ford continued, “As we are a nation under God, so I am sworn to uphold our laws with the help of God. And I have sought such guidance and searched my own conscience with special diligence to determine the right thing for me to do with respect to my predecessor…” That seeking included personal prayer and a request for Americans’ prayers.
Ford offered a number of reasons that convicted him in conscience to pardon Nixon. As President, he was sworn to uphold the Constitution, and that was supposed to guarantee a fair trial—speedy and by an impartial jury. How could this possibly be guaranteed to the former President, about whose conduct it could be assumed all Americans already had polarized opinions about? Ford correctly surmised that Nixon likely “would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.” The inherent difficulties with ensuring procedural justice made due process impossible to guarantee.
Ford offered another constitutional reason, appealing to his role as a steward of the great purposes of the Constitution set forth in the Preamble, including “ensuring domestic tranquility.” Months or years of criminal indictments, trials, and appeals would reopen the Watergate wounds, which would then fester, and inflame domestic passion and faction, further imperiling the republic. Moreover, Nixon and his family had “suffered enough.” Clemency thus operated to soften the severe effects that strict application of the criminal justice system to Nixon’s case would have not only on Nixon and his family but on the nation as a whole.
Ford saw his action as within the divine economy of justice and mercy with regard to his own soul: “I do believe, with all my heart and mind and spirit, that I…will receive justice without mercy if I fail to show mercy.” Ford’s act of mercy legally blotted out Nixon’s offense, removing the accusations that “hung like a sword” over his head, and enabled him to “reshape his life.”
President Ford’s approach to exercise of the pardon power—serious reflection on his duty to uphold the Constitution, humble seeking of divine aid, existential awareness of his subjection to divine law, and the divine economy of justice and mercy—aligns with the classical and Christian origins of American politics, and provides an example that we should expect our Chief Executive to emulate.
Kody W. Cooper is UC Foundation Associate Professor of Political Science and Public Service at the University of Tennessee at Chattanooga, and 2023-2024 Visiting Fellow with the Civitas Institute at the University of Texas at Austin.
[1] Kody W. Cooper and Justin Buckley Dyer, The Classical and Christian Origins of American Politics: Political Theology, Natural Law, and the American Founding (Cambridge University Press, 2022).
Dr. Kody W. Cooper is Associate Professor in the Institute of American Civics at the Baker School of Public Policy and Public Affairs, University of Tennessee-Knoxville.
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