The president of the United States isn’t a king, and he isn’t above the law — or so constitutional law professors like me keep reminding everybody. But the painful truth is that there is one exception to this truth: the pardon power, exercised last week by President Donald Trump to free or absolve several white-collar criminals.
The presidential power to pardon is a holdover from British monarchy. And pardoning by definition goes above and outside the legal system. The pardon power therefore poses a structural threat to the republican character of the U.S. government.
It gets worse. The framers understood that a president might abuse the pardon power. But they thought impeachment was a failsafe against that abuse. Now that Trump has been impeached but not removed, it’s hard to see what constraint still exists, short of public opinion.
We therefore need to ask a hard question about pardons: Should they be abandoned as relics of a bygone, anti-democratic age?
Let’s start with the framers, and how the pardon power made its way into the Constitution. Several state governors held the pardon power, and it was expected that the president would have it, too. On August 27, 1787, Roger Sherman of Connecticut proposed that the president only be able to exercise it with the consent of the Senate, an objection intended to lessen its apparently monarchic character. That idea was voted down without discussion.
On September 15, 1787, the issue arose again after Edmund Randolph, the governor of Virginia and a critic of strong executive power, argued that giving the president the ability to pardon treason would make him too powerful. Randolph worried that “the president may himself be guilty. The traitors may be his own instruments.”
In response, several framers who favored strong executive power spoke out against the alternative of giving the pardon power to Congress. Gouverneur Morris said he would “rather there should be no pardon for treason, than let the power devolve on the legislature.” James Wilson said that the pardon power, even in cases of treason, “is best placed in the hands of the executive.”
Rufus King further argued that “a legislative body is utterly unfit for the purpose” of issuing pardons because it would be “governed too much by the passions of the moment.” As an example he cited the Massachusetts legislature, which he claimed in one session “would have hung all the insurgents in that state” and then in the next legislative session “was equally disposed to pardon them all.” This was an openly anti-republican theory of pardon that preferred the president precisely because he did not reflect the popular will in the same way as the legislature.
King then re-proposed Sherman’s idea of Senate consent as a condition for pardon; and James Madison said he was prepared to agree to that arrangement for pardons of treason.
But Randolph rejected the compromise idea of Senate consent because “the great danger to liberty lay in a combination between the president and that body.” George Mason, another critic of executive power, echoed Randolph, insisting that “the Senate has already too much power.” The upshot was that the whole idea was dropped. The presidential pardon power remained intact — and restricted to the president.
The framers thought that a president who abused the pardon power would be impeached. Wilson said so explicitly in the same debate: “If he be himself a party to the guilt he can be impeached and prosecuted.” Madison made the same argument later at the Virginia ratifying convention.
Fast-forward to the present — and to a president who seems to be beyond the reach of impeachment. Might it be possible to limit future presidents from using the pardon power outrageously by creating a bureaucratic process that presidents commit to following before they issue pardons? It sounds like a good idea; and indeed, there exists an official office of the pardon attorney in the Department of Justice to run that process.
The trouble is that a president can, if he chooses, go outside that bureaucratic process. Trump did so in pardoning Michael Milken, the convicted securities fraudster and one-time junk-bond king. That leaves public condemnation as the only remedy. And Trump seems impervious to that check, too.
It’s difficult to avoid the conclusion that the pardon power should be abandoned as a relic of a time when monarchic ideas were still part of the constitutional fabric.
Advocates of mercy will say, with some justification, that we should not have a system in which the word of the courts is final. Forgiveness is a crucial human virtue.
But the answer to that problem is for the legislature to create mechanisms for review of past convictions that allow for mercy and forgiveness. Putting the pardon power into one man makes him into a king, almost a god. It was a bad idea in 1787. It’s a bad idea now. Donald Trump just makes that obvious.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.