Presidential Pardons: Justice, Leadership and Character
The power of presidential pardons has existed since the inception of the United States, enshrined in Article II, Section 2 of the Constitution:
“…he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”
This authority derives from the British royal prerogative of mercy, a discretionary power held by the monarch to correct injustices, provide political stability, and address humanitarian concerns. The Founding Fathers included this power in the Constitution for several key reasons: legal systems, no matter how well designed, inevitably produce errors or excessive punishments; national reconciliation, particularly after rebellion or insurrection; and the need for swift decisions during emergencies, bypassing legislative delays.
The inclusion of this power and its potential for abuse was heavily debated at the Constitutional Convention of 1787. Alexander Hamilton, in Federalist No. 74, championed its necessity, arguing that the president was best suited to wield this authority: “Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed… The sense of responsibility is strongest in proportion as it is undivided.” Critics feared that a corrupt president could use the power to shield co-conspirators. Hamilton and his allies, however, believed the benefits outweighed the risks, trusting that the president, as a singular and accountable figure, would exercise the power judiciously.
The moral reasoning behind the presidential pardon is rooted in a belief that justice systems, while necessary, are inherently fallible. The pardon acts as a corrective measure, acknowledging that rigid legal frameworks can sometimes produce unjust outcomes. As Thomas Sowell famously observed, “There are no solutions, only trade-offs.” This observation captures the inherent tension in the use of pardons—the trade-off between protecting society from dangerous individuals and safeguarding individual liberty.
At their best, pardons provide a release valve for injustices that rigid legal systems might otherwise perpetuate. They offer mercy when the justice system falters and act as a mechanism for national reconciliation. Fundamentally, the trade-off centres on a moral question: is it worse to have some number of citizens unjustly imprisoned or some number of citizens unjustly released? The heart of the matter lies in the moral weight we assign to individual rights versus collective security.
Imprisoning an innocent person represents a profound violation of an individual’s inalienable rights to liberty and due process, principles enshrined in the American ethos. While releasing a guilty person may pose public safety challenges, it does not constitute the same level of state-sanctioned injustice. This distinction underscores why mechanisms like the presidential pardon are so vital. They provide a means of correcting the most egregious failures of justice, even when the system occasionally errs on the side of mercy. The preservation of individual liberty remains the cornerstone of a free society.
In its current form, there are few checks and balances on the use of presidential pardons. It is therefore wholly reliant on the integrity and character of the president of the day. Historical examples can be found that show both the importance of presidential power when exercised judiciously and those that merely serve personal political purposes.
George Washington, the first to test presidential pardon power, pardoned participants in the Whiskey Rebellion, some of whom had been found guilty of treason for violent protests against a federal excise tax. Thomas Jefferson later used the power to pardon those convicted under John Adams’ Alien and Sedition Acts, which criminalized dissenting speech. These laws were largely weaponized against Democratic-Republican journalists critical of Adams. Jefferson’s pardons highlighted his rejection of such authoritarian overreach.
President Abraham Lincoln, a Republican, ran on a unity ticket with Andrew Johnson, a Southern Democrat, in the 1864 election. Their victory over Democratic nominee George McClellan was part of a broader effort to heal the nation’s divisions during the Civil War. After the election, on January 13, 1865, the U.S. House of Representatives passed a joint resolution to abolish slavery, which became the Thirteenth Amendment upon ratification in December 1865. However, the nation’s path to reconciliation took a tragic turn when Lincoln was assassinated on April 14, 1865, and Andrew Johnson was sworn in as president the following day.
As president, Johnson, a Southerner with strong sympathies for the South, sought to undermine Reconstruction and re-establish the pre-war political class in the Confederate states. He issued widespread pardons to former Confederates, including high-ranking officers and political leaders. These pardons allowed many former slaveholders to regain their property and political influence, effectively paving the way for the reassertion of a racist political structure in the South. Johnson’s use of pardons was heavily criticized for hindering Reconstruction efforts. Many former Confederates, now reinstated in positions of power, swiftly implemented discriminatory policies such as Black Codes, which severely restricted the rights and freedoms of African Americans. Johnson’s decisions resulted in deepening tensions between the executive and Congress, contributing to the eventual impeachment of Johnson in 1868 (though he was acquitted by one vote in the Senate).
Johnson’s expansive use of the pardon power illustrates how such authority can be exploited to favour political allies, even at the cost of undermining justice and prolonging racial inequality. His actions demonstrate the darker side of the pardon power, illustrating how it can be used to restore the old power structures rather than promote healing and unity.
In stark contrast to Andrew Johnson’s post-Civil War pardons, President Jimmy Carter’s pardon for Vietnam War draft dodgers presents a more nuanced use of the pardon power. Upon taking office in 1977, Carter issued a blanket pardon for individuals who had avoided the draft during the Vietnam War, whether by fleeing the country, using fraudulent means, or engaging in other forms of resistance. While the pardon was intended as a gesture of national healing following the divisive conflict, it sparked considerable controversy at the time. Critics argued that it was a politically motivated move aimed at placating a generation of anti-war activists, and some saw it as an affront to the service and sacrifices made by those who fought in the war. The pardon, they contended, could undermine the moral integrity of military service and disrespect the veterans who had answered the call to duty.
Moreover, the blanket nature of the pardon raised concerns about setting a dangerous precedent. Critics feared that pardoning large groups of people, especially those who had broken the law in such a direct and significant manner, could diminish the value of accountability in society. The question was whether the mass forgiveness of draft dodgers could erode public trust in the justice system and the notion that individuals must face the consequences of their actions.
However, in hindsight, time has been somewhat kind to Carter’s decision. As the historical narrative of the Vietnam War has evolved, a broader critique of the war itself has taken shape. The war’s controversial nature, the widespread disillusionment with US foreign policy, and the societal upheaval it caused have led many to question whether US involvement and the draft were just in the first place. The pardon, in this light, can be seen not as a simple political gesture but as a moral correction, an acknowledgment that the war was a deeply flawed and divisive endeavour, and that many who resisted the draft did so out of principled opposition to a conflict they believed was unjust.
Carter’s action, in retrospect, has become more understandable in the context of a nation grappling with its post-Vietnam identity. While the decision was controversial at the time, it has since been viewed by many as a necessary step toward reconciliation and healing, offering a form of closure for those who had been at odds with the government over the war. In this case, the pardon served a restorative function, attempting to heal the deep wounds left by a contentious war, much like the broader post-war reconciliation efforts seen in other periods of American history.
As the United States finds itself still wrestling with the legacy of Vietnam, along with its more recent military involvements in Iraq, Afghanistan, Libya, and Syria, the anti-war sentiment that took root during the 1960s and 1970s has continued to shape American political discourse. The Vietnam War fuelled mistrust of government actions abroad, and this scepticism found a strong voice in the modern Republican Party, particularly within the America First movement. Many of the party’s more isolationist figures, including Donald Trump, have drawn direct lines between the failures of Vietnam and the mistakes of more recent military interventions, arguing that the US should avoid entanglements that do not serve the national interest. In this context, Carter’s pardon can be seen as part of a broader reckoning with the costs of war, symbolising the shift toward an increasingly critical view of military adventurism.
In contrast to Johnson’s pardon of former Confederates, which allowed old power structures to reassert themselves, Carter’s pardon of draft dodgers aimed to challenge and correct a power dynamic that had led to a morally questionable war. Carter’s use of the pardon power, while controversial, ultimately reflects the potential for the pardon to serve as a tool for societal reflection, healing, and rebalancing.
Recent decades have seen more controversial uses of pardons, from Bill Clinton’s infamous pardon of Marc Rich to Donald Trump’s pardoning of political allies, and Joe Biden’s unprecedented blanket pre-emptive pardons. These examples have reignited debates about whether the pardon is truly a check on judicial overreach, or a mere tool for political manipulation.
Donald Trump’s clemency for Roger Stone, a close ally convicted of lying to Congress, and Paul Manafort, his former campaign chairman convicted of financial crimes, caused concern for their political motivations. In a similar vein, Joe Biden’s use of the pardon power raises concerns about misuse.
Gerald Ford may have issued the first pre-emptive pardon for Richard Nixon following the Watergate scandal, but Joe Biden took the practice to unprecedented levels. He issued blanket (in that no specific crime was specified) pre-emptive pardons for his direct family, Dr. Anthony Fauci, and members of the January 6th Committee. He issued more acts of clemency than any president in history during a single four-year term, setting a historical record and exceeding the combined total of the previous seven presidents.
These modern abuses highlight a profound ethical dilemma. The unchecked use of pardons risks undermining the very notion of justice. When pardons are granted not on the merits of an individual’s case but as a tool for personal or political advantage, they erode public trust in the justice system itself. The perception of cronyism, that the powerful and well-connected are above the law, only deepens. Such actions, far from advancing justice, suggest that the pardon power has been transformed from a mechanism for mercy into a shield for the politically powerful, perpetuating inequality and injustice.
Pre-emptive pardons raise additional concerns. By allowing individuals to avoid facing the consequences of their actions before they have even been established, let alone tried, presents a serious loophole in the accountability mechanisms of a functioning democracy. This approach to clemency not only sidesteps the judicial process but also places the most privileged in society above the law, effectively undermining the foundational principle that no one is above the system of justice.
The presidential pardon power is undeniably a double-edged sword. On one hand, it serves as a vital check on authoritarianism, offering the president an essential tool to correct miscarriages of justice, challenge a corrupt or overly punitive system, and extend mercy when the legal process fails. On the other hand, it can be easily weaponized by a corrupt president to protect allies, undermine accountability, and evade consequences. The solution is not to dismantle this constitutional safeguard but to reform it in a way that ensures greater transparency and accountability. One potential reform could involve limiting pardons to earlier in a president’s term, eliminating the problematic last-minute clemency decisions that often serve as political lifelines.
Ultimately, the power’s integrity is tied to the character and judgment of the person in office. As history has shown, the responsible exercise of this power can correct injustices and heal divisions. Conversely, its misuse can erode trust in democratic institutions. The American people must remain vigilant, electing leaders who will wield this power judiciously and in service of justice rather than personal gain.