I beg your pardon: A deeper look at the president’s pardoning power

One of the interesting sidebars to the Jan. 6 committee’s investigation into the Capitol breach is the number of individuals clamoring for last minute pardons as President Trump was on his way out the door.  The Oval Office must have been a boisterous, bustling hub with pardon requests figuratively coming-in under the door, over the transom, and through the window.   

According to information released by the select committee, thus far nine people asked for preemptive, blanket pardons during the final days of the Trump administration.  They included six sitting House Republicans: Reps. Andy Biggs (Ariz.), Mo Brooks (Ala.), Matt Gaetz (Fla.), Louie Gohmert (Texas), Scott Perry (Pa.), and Marjorie Taylor Greene (Ga.). The other three pardon requests were reportedly sought by Trump’s chief of staff Mark Meadows, and personal lawyers Rudy Giuliani and John Eastman. Some of those principals have denied ever asking for pardons. 

The great irony is that, as far as we know, the president did not grant any of those requests, even though he had previously pardoned his former counselor Steve Bannon and former National Security Council adviser Michael Flynn for crimes unrelated to the electoral count imbroglio. How could this be when these nine Trump loyalists went to such great lengths to promote “The Big Lie” and devise all manner of legally questionable schemes to disrupt, derail and reverse the outcome?   

Rep. Adam Kinzinger (R-Ill.), a select committee member, may have indirectly suggested the answer when he stated at the June 23 hearing, “The only reason I know to ask for a pardon is because you think you’ve committed a crime.” By that same reasoning, if the president granted those last-minute pardon requests it may have looked like he was aware of and complicit in the commission of crimes. Put another way, ignoring the pardon pleaders gave him plausible deniability that he knew illegal acts were being committed at his behest.   

Another plausible explanation is that the president was demonstrating his disappointment that their efforts failed. To him, they were the “losers,” not he. He could care less about their fate and, instead was only thinking about himself and his viability as a presidential candidate in 2024. He certainly was aware of the likely part President Gerald R. Ford’s 1974 pardon of former President Richard Nixon played in Ford’s election loss to former Georgia Gov. Jimmy Carter in 1976.  

The president’s pardoning power is clearly stated in Article II, section 2, of the Constitution: “…he shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The only substantive issue raised over the clause during the constitutional convention’s debates came in the form of an amendment offered by Delegate Roger Sherman of Connecticut to make pardons subject to “consent of the Senate.”  The amendment was rejected, one state to eight.   

In Federalist No. 74, Alexander Hamilton noted that some favored making a pardon for the crime of treason contingent on the “assent of one, or both, of the branches of the legislative body.” However, he concluded that the power is best left solely to the president: “In seasons of insurrection or rebellion,” he wrote, “there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.” In such instances, “the dilatory process of convening the legislature” to approve the pardons might mean missing a “golden opportunity” to resolve the crisis: “The loss of a week, a day, an hour, may sometimes be fatal.” 

As Cassidy Hutchinson, a top aide to Mark Meadows, testified last week, White House counsel Pat Cipollone told her that, after the attack, the president seriously considered granting a blanket pardon to all those who breached the Capitol and assaulted its police. He was talked out of it. It was not a Hamiltonian moment for Trump: the rebellion had already been quelled and tranquility restored.          

President Trump was not stingy about handing-out pardons during his four years in office. He issued 237 in all — still fewer than all other modern presidents. What was different was that most of those pardon requests bypassed the normal process of first going through the Office of Pardon Attorney (OPA) in the Department of Justice. Most of Trump’s grants of clemency were bestowed on well-connected convicts who had been convicted of fraud or corruption. They had not bothered to first file petitions with the OPA and meet its requirements. Apparently, the end-of-the-line nine pardon petitioners were a day late and a dollar short of qualifying for the OPA bypass-express through the Oval. 

Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, former staff director of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.