In The Federalist No. 74, Hamilton describes the power to pardon as a “benign prerogative.”¹Hamilton, Federalist No. 74. The absence of a clemency mechanism, Hamilton reasoned, would allow for a system of justice “too sanguinary and cruel.”²Id. The pardon power was therefore necessary to temper justice with mercy.³Id. Chief Justice John Marshall in United States v. Wilson similarly characterized a pardon as “an act of grace.”⁴United States v. Wilson, 32 U.S. 150, 150 (1833). 

Beyond its moral aim, Hamilton construed the strategic purpose of the pardon power narrowly. By specifically vesting the president with this power, it could be exercised quickly to mollify civil unrest: “In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”⁵Hamilton, Federalist No. 74. The Framers intended that the power to pardon would play both a virtuous and a prudent role in the constitutional system.

Over time, federal courts have emphasized not just the purpose of pardons, but also that they are used in the constitutional system. That is, while they may serve a merciful purpose, they are not a “private act of grace,” according to the Supreme Court.⁶private Instead, they are “part of the Constitutional scheme,” and as such, a tool to further “the public welfare.”⁷Id. Chief Justice and former President Howard Taft reflected that “[t]he only rule he [a president] can follow is that he shall not exercise it against the public interest.”⁸William Howard Taft, Our Chief Magistrate and His Powers, New York: Columbia University Press, 1925, 121. In 1974, a federal district court—assessing the constitutionality of a condition placed on a pardon—reaffirmed that the pardon power is not “limitless.” Instead, “[t]he President, who exercises that power as the elected representative of all the People, must always exercise it in the public interest.”⁹Hoffa v. Saxbe, 378 F. Supp. 1221 (D.D.C. 1974).

To determine whether a president abuses the pardon power requires assessing whether a pardon violates constitutional provisions or principles and thus upsets the constitutional order.

Certainly, as with the exercise of any executive power, the public has sometimes disagreed with the judgment of presidents, and whether particular pardons in fact best serve the public interest. Since George Washington granted the country’s first-ever pardons in an effort to quell the violent Whiskey Rebellion, the exercise of the power has invited controversy. President Andrew Johnson sparked a national outcry by granting thousands of pardons to Confederate officials, as did President Gerald Ford when he pardoned President Nixon. But controversial pardons are not necessarily illegitimate ones. To determine whether a president abuses the pardon power requires assessing whether a pardon violates constitutional provisions or principles and thus upsets the constitutional order.

The pardon power may be abused in at least four distinct ways: by placing the president above the law; by violating individual liberties protected by the Bill of Rights and preventing courts from enforcing orders to protect those rights; by violating generally applicable federal criminal statutes, including by using pardons to obstruct justice or as a bribe; and by licensing lawbreaking on the president’s behalf.

1. Pardons that place the president above the law

1. Pardons that place the president above the law

Two kinds of pardons would function to place a president above the law: a self-pardon and a self-protective pardon (that is, a pardon that has the intent and effect of impeding an investigation into a president or his interests and that would thus amount to a self-pardon). Both violate several constitutional provisions and principles.

The pardon power must be understood within the context of the other Article II powers and responsibilities of the president. Two provisions—the Take Care Clause and the Oath Clause¹⁰The Take Care Clause, which requires the president to “take Care that the Laws be faithfully executed,” bars the President from betraying the public good to exempt himself from the law. The constitutionally prescribed Oath contains a similar command to “faithfully execute” the office (i.e., the powers assigned) and to “preserve, protect and defend the Constitution of the United States.” See, U.S. Const. Art. II, § 3.—require, respectively, that the president “take Care that the Laws be faithfully executed” and that he swear to “faithfully execute the office of President.” Appearing twice, the term “faithful execution” at the time of the Constitution’s writing specifically meant exercising power in the public interest and served as a rebuke to “self-dealing, self-protection, or other bad faith, personal reasons.”¹¹Andrew Kent. “Examining the Constitutional Role of the Pardon Power: Hearing before the House Judiciary Committee Subcommittee on the Constitution, Civil Rights, and Civil Liberties | Statement by Prof. Andrew Kent, Fordham Law School.” Fordham School of Law, March 27, 2019, 4. https://www.fordham.edu/media/home/schools/school-of-law/pdfs/HHRG-116-JU10-Wstate-KentA-20190327.pdf. The twin clauses articulating a president’s solemn obligation to faithfully execute the nation’s laws bind the president to exercise fiduciary duties of loyalty and care to the common good.¹²Ethan J. Lieb, Jed Handelsman Shugerman, & Andrew Kent, Faithful Execution and Article II, 132 Harv. L. Rev. 2111 (2019).

No one power can run roughshod over other parts of the Constitution. The pardon power is no exception.

Aligned with these constitutional commands, the pardon power is intended to serve a public interest function. As the Supreme Court explained in Biddle v. Perovich, a pardon “is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”¹³Biddle v. Perovich, 274 U.S. 480, 486 (1927). Self-pardons (and similarly, self-protective pardons) would constitute an explicit form of self-dealing, contradicting the power’s public interest purpose as articulated by the Court. They would also, therefore, run afoul of the president’s broader Article II responsibilities by allowing the president to wield the powers of his office in service of himself, not the public interest.¹⁴See, e.g. Brian C. Kalt “Pardon Me?: The Constitutional Case against Presidential Self-Pardons.” The Yale Law Journal 106, no. 3 (1996): 779–809. https://doi.org/10.2307/797310.  (The Constitutional provision in Art. I, § 3, cl. 7, stating that no one may “enjoy any Office” after impeachment, is inconsistent with a president pardoning himself. He would otherwise be “the only federal official who can deal himself a fruit of his office and enjoy it after he is gone,” retaining immunity despite his impeachment.).

The executive branch has also issued its own perspective on the constitutionality of a self-pardon. Days before President Nixon’s resignation, after Nixon had potentially violated various federal laws related to efforts to ensure he won re-election,¹⁵Tim Naftali. “Trump’s Pardons Make the Unimaginable Real.” The Atlantic, December 23, 2020. https://www.theatlantic.com/ideas/archive/2020/12/how-abuse-presidential-pardon/617473/. the Department of Justice produced a legal opinion that concluded: “Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.”¹⁶Mary C. Lawton. “Presidential or Legislative Pardon of the President, Memorandum Opinion for the Deputy Attorney General.” Office of Legal Counsel, U.S. Department of Justice, August 5, 1974. https://www.justice.gov/file/147746/dl?inline. The conclusion relied on a well-settled constitutional principle¹⁷Calder v. Bull, 3 U.S. 386 (1798). found in various contexts in U.S. law that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment,” as articulated by James Madison.¹⁸James Madison. Federalist No.10, in The Federalist Papers, Library of Congress. https://guides.loc.gov/federalist-papers/text-1-10#s-lg-box-wrapper-25493273. The Supreme Court, from among its earliest cases¹⁹Calder v. Bull, 3 U.S. 386 (1798). to the modern era,²⁰Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995). has invoked the principle in order to prevent gross conflicts of interests among public officials. Self-pardons would turn a president into a judge and jury in his own case, where his obvious personal interests would bias his judgment. No self-pardon has been attempted so no federal court has entertained a challenge to one; but courts have been “unanimous”²¹Brian C. Kalt. “Pardon Me?: The Constitutional Case against Presidential Self-Pardons.” The Yale Law Journal 106, no. 3 (1996): 779–809. https://doi.org/10.2307/797310. when such self-judging conflicts come before them, including in cases involving officials from all three branches of government (e.g., judges,²²In re Murchison, 349 U.S. 133 (1955); Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009). lawmakers,²³Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011). and prosecutors²⁴Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787 (1987).).

Finally, self- and self-protective pardons would violate the central principle in our constitutional system that ours is “a government of laws, not of men”²⁵Cooper v. Aaron, 358 U.S. 1, 23 (1958). and that as such, no president is “above the law.”²⁶United States v. Nixon, 418 U.S. 683 (1974). “No man in this country is so high that he is above the law,” the Supreme Court held in United States v. Lee. “All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”²⁷United States v. Lee, 106 U.S. 196 (1882). In Trump v. Vance, the Court reiterated that the president is not a king, but rather “‘of the people’ and subject to the law.”²⁸Trump v. Vance, 140 S.Ct. 2412, 4 (2020). Indeed, the Framers, when galvanizing support for the newly drafted Constitution, were explicit that the nation’s presidents, unlike British kings, would be “liable to prosecution and punishment in the ordinary course of the law,” just like any other citizen who had committed crimes.²⁹Alexander Hamilton, Federalist No. 69, in The Federalist Papers. Yale Law School Lillian Goldman Library, 2008. https://avalon.law.yale.edu/18th_century/fed69.asp. Self- and self-protective pardons, which function to place the president beyond the reach of the federal criminal justice system, are plainly incongruous with the Framers’ vision of an American presidency subject to the rule of law.

2. Pardons that infringe on Constitutional rights

2. Pardons that infringe on Constitutional rights or prevent courts from enforcing orders protecting those rights

Another type of abuse arises when a president grants a pardon that violates an individual’s constitutional rights or subverts the judiciary’s constitutional power to enforce orders protecting those rights. While enumerated powers across the three branches of the federal government, as well as protections enshrined in the Bill of Rights, may come into conflict with one another, they must also accommodate one another. No one power can run roughshod over other parts of the Constitution. The pardon power is no exception.

First, no power vested with any branch of the federal government can be legitimately wielded to violate constitutionally protected rights. Consider how the Commerce Clause allows Congress to regulate interstate commerce. If, however, Congress were to exercise that power in a way that prohibited mailing certain newspapers across state lines, it would violate the First Amendment. The Commerce Clause does not itself explicitly limit Congress’s authority to pass such a law;³⁰U.S. Const. art. I, § 8, cl. 3. other parts of the Constitution—in this case, the First Amendment—do so instead.³¹U.S. Constitution, amend. 1. Constitutional rights are likewise vulnerable to abuse by the pardon power. For example, were a president to grant pardons for a particular offense to all white people guilty of that offense but not to people of color, that would flagrantly violate the requirement of equal protection of the laws. As Justice John Paul Stevens once observed, “no one would contend that a Governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency.”³²Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998).

The requirement that the pardon power accommodate the individual rights protected by the Constitution is not merely a hypothetical one. In Burdick v. United States, the Supreme Court explained that a pardon cannot be used to abrogate a witness’s Fifth Amendment right against self-incrimination. Newspaper editor George Burdick had invoked that right when refusing to testify to a federal grand jury investigating customs fraud.³³Burdick v. United States, 236 U.S. 79 (1915). To compel Burdick’s testimony, President Wilson attempted to pardon him, eliminating his risk of criminal exposure and thus nullifying his ability to invoke his right to remain silent. However, Burdick did not accept the pardon and the Court held that the Fifth Amendment constrained the effects of the pardon power. “It is to be borne in mind,” the Court wrote, “that the power of the President under the Constitution to grant pardons and the [Fifth Amendment] right of a witness must be kept in accommodation. Both have sanction in the Constitution, and it should therefore be the anxiety of the law to preserve both—to leave to each its proper place.”³⁴Id.

Second, the pardon power must also accommodate the authorities assigned by the Constitution to the other branches of government. The use of any power vested with one branch of the federal government, including the pardon power, to neuter powers granted to the other branches, gives rise to a constitutional conflict between branches. Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer sets out a framework for assessing the permissibility of exercises of presidential power vis-à-vis the powers of Congress. Under that framework, if the president “takes measures incompatible with the expressed or implied will of Congress,” the president’s authority is at a “nadir.”³⁵Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).  The same concept applies if a president seeks to use a power in a manner incompatible with the will of the third branch: the judiciary.

Consider one power that the courts rely on to perform their constitutional function: the contempt power, or the ability to hold a person in contempt of court in order to enforce the court’s orders. The Supreme Court has held that the judiciary’s role in our constitutional system hinges on the ability of courts to prosecute contempt independently—that is, without relying on the whims of the executive branch. “The ability to punish disobedience to judicial orders,” the Court reasoned, “is regarded as essential to ensuring that the Judiciary has a means to vindicate its own authority without complete dependence on other Branches.”³⁶See, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987). Otherwise, “the courts [are] impotent, and what the Constitution now fittingly calls ‘the judicial power of the United States’ would be a mere mockery.”³⁷Id. A president who seeks to grant a pardon for contempt of court, overriding a court’s ability to enforce its orders, would make “a mere mockery” of the courts’ constitutional powers.³⁸The Supreme Court has made clear that the pardon power does not extend to pardoning contempt where doing so would interfere with a court’s ongoing ability to enforce the rights of a litigant. Ex parte Grossman, 267 U.S. 87, 121 (1925). (The Court in Grossman upheld the pardon of a contempt order for disobeying a regulatory injunction related to Prohibition—the case did not involve a contempt order arising out of a case protecting individual constitutional rights. As the Court explained: “A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right.”) Because the pardon power cannot be used to vitiate constitutionally protected rights, a pardon cannot purport to prevent a court from enforcing its orders safeguarding those rights.³⁹ In 2017, President Trump pardoned Arizona ex-Sheriff Joe Arpaio, who defied a criminal contempt of court order to stop racial profiling that violated Americans’ constitutional rights. This rendered the underlying plaintiffs unable to access a remedy for the violation of their rights by neutering the court’s authority to enforce its own orders. The pardon, therefore, functioned to undermine the constitutional power of another branch of government. See Brief of Protect Democracy et al. as Amici Curiae, United States v. Arpaio, 9th Cir. (2018) (No. 17-10448), explaining that a pardon that undermines the federal courts’ authority is unlawful. 

3. Pardons that function as a bribe or to obstruct justice

3. Pardons that function as a bribe or to obstruct justice

Pursuant to its legislative authority, Congress has enacted certain federal criminal laws, including 18 U.S. Code § 201 forbidding bribery of public officials and witnesses,⁴⁰“18 U.S. Code § 201 – Bribery of Public Officials and Witnesses.” Legal Information Institute. Accessed March 4, 2024. https://www.law.cornell.edu/uscode/text/18/201. 18 U.S. Code § 1510 prohibiting obstruction of criminal investigations,⁴¹ “18 U.S. Code § 1510 – Obstruction of Criminal Investigations.” Legal Information Institute. Accessed March  4, 2024. https://www.law.cornell.edu/uscode/text/18/1510. and 18 U.S. Code § 1512 disallowing tampering with witnesses, victims, or informants.⁴²“18 U.S. Code § 1512 – Tampering with a Witness, Victim, or an Informant.” Legal Information Institute. Accessed March 4, 2024. https://www.law.cornell.edu/uscode/ text/18/1512. Granting or proposing to grant a pardon in order to impede an investigation or as part of a bribery scheme would violate these federal laws and so be impermissible.

First, a pardon in exchange for something of value would violate the criminal prohibition on bribery.⁴³18 U.S.C. § 201. To protect the integrity of and trust in public servants, federal law prohibits public servants from exchanging official acts for anything of value for themselves or their family members. The president is a public servant and a pardon constitutes a clear official act. When President Clinton pardoned Marc Rich in 2001 in what some believed could be a quid pro quo for donations, federal prosecutors empaneled a grand jury to investigate. Congress also conducted extensive oversight investigations of its own and prepared public reports on its findings. If the Rich pardon had been found to be part of a quid pro quo, wherein the provision of a thing of value materially influenced President Clinton’s decision to grant the pardon, then the pardon would have violated the bribery statute.

The president cannot exempt himself from criminal laws. And in the event that the president violates the law, he is not immune from liability by virtue of having used an official act to commit the violation.

Second, any pardon that is granted, or any pardon that is offered or promised to be granted (i.e., “dangled pardons”⁴⁴Dangled pardons reference pardons that are promised in order to influence the potential recipient’s behavior, such as those that are offered in order to impede an investigation.), with the intent and effect of impeding an investigation in which the president or a close relative or employee or associate is a target or subject would constitute an obstruction of justice. To guarantee a fair and independent criminal process, obstruction laws prohibit corruptly motivated actions to hinder a criminal investigation “by means of bribery” or by “corruptly persuad[ing] a witness or potential witness to withhold information about the commission of a federal offense.”⁴⁵18 U.S.C. §§ 1510, 1512. Promising a pardon to prevent a witness from cooperating with an investigation would thus constitute obstruction. This would be unlawful in the same way that it would be unlawful for the president to lie to a grand jury or assault a witness.

President Nixon dangled pardons to witnesses in order to prevent their cooperation during the Justice Department’s investigation into the Watergate break-in—an action that the U.S. House cited in its articles of impeachment.⁴⁶Berger, “Obstructing Justice through Pardons…” 2018. More recently, President Trump’s counsel discussed the possibility of pardons with Michael Flynn’s and Paul Manafort’s counsel, and Trump himself may have led Michael Cohen to expect a pardon.⁴⁷Michael S. Schmidt, et al., “Trump’s Lawyer Raised Prospect of Pardons for Flynn and Manafort,” The New York Times, March 28, 2018. https://www.nytimes.com/2018/03/28/us/politics/trumppardon-michael-flynn-paul-manafort-john-dowd.html;  Maggie Haberman, “Trump Asserts That Michael Cohen Asked Him Directly for a Pardon and Was Told No,” The New York Times, March  8, 2019. https://www.nytimes.com/2019/03/08/us/politics/cohen-pardon.html (Indeed, after Manafort’s counsel was told by Trump’s to “sit tight” and that he would be “taken care of,” Manafort refused to cooperate with a grand jury and investigators.)⁴⁸Katelyn Polantz. “Manafort Request for Leniency Met with a Final Sentence: 7.5 Years.” CNN, March 14, 2019. https://www.cnn.com/2019/03/13/politics/manafort-hearing/index.html. The mere discussion of potential pardons with known witnesses could amount to obstruction of justice if intended to impede criminal investigations.

The president cannot exempt himself from criminal laws. And in the event that the president violates the law, he is not immune from liability by virtue of having used an official act to commit the violation. While there is debate about whether a president can be indicted while in office, there is no doubt (notwithstanding Trump’s audacious claims to absolute immunity)⁴⁹Justin Florence and Genevieve Nadeau. “Courts to Trump Again and Again: You’re Not Above the Law.” The Bulwark+, December 7, 2023. https://plus.thebulwark.com/p/donald-trump-immunity-courts-quixotic. that he can be subject to prosecution upon leaving, as the executive branch itself has clarified⁵⁰Randolph D. Moss. “A Sitting President’s Amenability to Indictment and Criminal Prosecution.” Office of Legal Counsel, United States Department of Justice, October 16, 2000. https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution. and federal courts have affirmed.⁵¹Katelyn Polantz, and Hannah Rabinowitz. “Federal Judge Says Trump Does Not Have Absolute Immunity, Denying Bid to Dismiss Election Subversion Case.” CNN, December 1, 2023. https://www.cnn.com/2023/12/01/politics/trump-presidential-immunity-election-subversion-case-chutkan/index.html. Violating criminal law through the corrupt use of the pardon power would constitute an abuse of that power subject to criminal accountability.⁵²118 U.S. Code § 201 forbids bribery of public officials and witnesses; 18 U.S. Code § 1510 prohibits obstruction of criminal investigations; 18 U.S. Code § 1512 broadly disallows tampering with witnesses, victims, or informants.

As the Supreme Court reiterated in Trump v. Vance, unlike the British monarchs, “[t]he President, by contrast, is ‘of the people’ and subject to the law.”⁵³Trump v. Vance, 591 U.S. ___ (2020). There is no exception for federal criminal laws.⁵⁴While the relevant federal criminal laws do not exempt the president, some (for example, former Attorney General Bill Barr) have argued that these generally applicable laws must include an explicit clear statement to apply to the president. See, Bill Barr to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, June 8, 2018, U.S. Department of Justice, Re: Mueller’s “Obstruction” Theory, The New York Times. Accessed March 4, 2024. https://int.nyt.com/data/documenthelper/549-june-2018-barr-memo-to-doj-mue/b4c05e39318dd2d136b3/optimized/full.pdf#page=1; Jack Goldsmith. “A Qualified Defense of the Barr Memo: Part I.” Lawfare, January 4, 2019. https://www.lawfaremedia.org/article/qualified-defense-barr-memo-part-i. Those arguments are unpersuasive, and contrary to precedent of prior investigations into Presidents Nixon, Bush, and Clinton, for reasons explained by Andrew Kent and Benjamin Wittes. See, Andrew Kent. “More Justice Department Precedent in Support of Mueller’s Obstruction Theory.” Lawfare, May 14, 2019. https://www.lawfaremedia.org/article/more-justice-department-precedent-support-muellers-obstruction-theory; Benjamin Wittes. “In Defense of Mueller’s Obstruction Theory: A Reply to Jack Goldsmith.” Lawfare, May 12, 2019. https://www.lawfaremedia.org/article/defense-muellers-obstruction-theory-reply-jack-goldsmith. Should the president be permitted to use one lawful power, such as the pardon power, to violate other laws with impunity, it would render him a king.

4. Pardons that license lawbreaking on the president’s behalf

4. Pardons that license lawbreaking on the president’s behalf

Granting or proposing to grant pardons in order to in effect give license to lawbreaking would also breach the president’s duty to faithfully execute the law—particularly when the president’s own interests are implicated. 

Trump has proposed pardoning those convicted for actions related to the January 6th insurrection for which he is now a criminal defendant.⁵⁵Mariana Alfaro. “Trump Vows Pardons, Government Apology to Capitol Rioters If Elected.” The Washington Post, September 1, 2022. https://www.washingtonpost.com/national-security/2022/09/01/trump-jan-6-rioters-pardon/. According to evidence presented by the Justice Department in its prosecution of the former president, Trump has “financially supported and celebrated these offenders—many of whom assaulted law enforcement on January 6,” embracing “particularly violent and notorious rioters… [many of] whom he now calls ‘patriots.’”⁵⁶United States v. Donald J. Trump, No. 1:23-cr-00257-TSC (D.D.C. 2023). Indeed, the act of promising pardons to these offenders is, according to prosecutors, a method of “publicly signaling that the law does not apply to those who act at his urging regardless of the legality of their actions.”⁵⁷Id.

This use of the pardon power to sanction future lawbreaking, particularly when the president’s interests are involved, runs afoul of the president’s Article II responsibilities to faithfully execute the law. The twin commands of faithful execution—the Oath Clause and the Take Care Clause—impose upon the president a duty to “preserve, protect and defend the Constitution of the United States,”⁵⁸U.S. Const. art. II, § 3, cl. 1 and to ensure that the nation’s “Laws be faithfully executed.”⁵⁹U.S. Const. art. II, § 1, cl. 8 The Faithful Execution Clauses restrain the president’s discretion in the use of the office’s powers: all powers, including the pardon power, must be used to serve the public interest. Commands of faithful execution date back to 13th century English law and were carried through to the American colonies, from which the Framers derived them. The throughline of meaning, according to legal scholars, is an affirmative duty to carry out the responsibilities of public office “in the best interest of the public” and, critically, to reject “self-dealing.”⁶⁰Lieb, Shugerman, and Kent, Faithful Execution and Article II, 2141.

Use of the pardon power to sanction future lawbreaking, particularly when the president’s interests are involved, runs afoul of the president’s Article II responsibilities to faithfully execute the law.

The proposed pardons for crimes related to the January 6th insurrection would both sanction an attempt to violently overthrow the U.S. government, violating the president’s duty to defend the Constitution, and serve the president’s personal interests given his own status as a criminal defendant for his role in the insurrection. 

Certainly, controversy surrounding pardons is not novel, including pardons related to domestic armed activity. Presidents George Washington, James Buchannan, Abraham Lincoln, and Andrew Johnson, for instance, all ignited public backlash for pardoning those who took up arms against the United States, or gave comfort or aid to those who did (during the Whiskey Rebellion, Utah War, and Civil War, respectively).⁶¹James Pasley. “The President’s Power to Pardon Is Broad, Unchallengeable, and Almost Unlimited. Here Are 25 of the Most Controversial Pardons and Commutations in History.” Business Insider, May 5, 2023. https://www.businessinsider.com/most-controversial-presidential-pardons-commutations-in-us-history-2023-4. Yet in each instance, the pardons comported with a legitimate purpose of the power—in these cases, the Framers’ intention that the power be used to mollify civil unrest. During the Whiskey Rebellion, Washington promised pardons to rebels who in turn promised to lay down their arms, just as Hamilton intended of “a well timed offer of pardon to… restore the tranquility.”⁶²Graham Dodds. Mass Pardons in America: Rebellion, Presidential Amnesty, and Reconciliation. New York Chichester, West Sussex: Columbia University Press, 2021. https://doi.org/10.7312/dodd20078 During the Civil War, Lincoln made similar use of the power, offering pardons to those who would “resume their allegiance to the United States,” and conditioning the pardons on recipients taking an oath.⁶³Abraham Lincoln. Proclamation 108—Amnesty and Reconstruction. The American Presidency Project, December 8, 1863. Online by Gerhard Peters and John T. Woolley, https://www.presidency.ucsb.edu/node/202362 

The proposed pardons for January 6th are dissimilar in at least two key respects. In each prior case, presidents sought to prevent attempts to overthrow the U.S. government by granting pardons, not to give those violent uprisings their blessing. Trump’s proposed pardons would not be for the purposes of restoring tranquility and resuming allegiance to the United States; according to him, those convicted of crimes related to the January 6th insurrection acted “patriotically” and are being held as “hostages.”⁶⁴Adam Gabbatt. “Trump’s Novel Take on January 6: Calling Convicted Rioters ‘Hostages.’” The Guardian, January 13, 2024. https://www.theguardian.com/us-news/2024/jan/13/trump-january-6-rioters-hostages. Instead, they would pervert the Framers’ intended purpose of the power—not to mollify insurrectionary activity, but to give it license. And in no prior case was the president himself a co-conspirator in the insurrection and the target of ongoing state and federal investigations and prosecutions. Such pardons would thus fail as a measure to defend the Constitution against domestic enemies, and would serve to further the president’s personal interests as a criminal defendant.