There comes a time for every president when they must face the inevitable reality that they are out of a job. What do most of these men do with this realization that campaigning is over? They pardon whomever they want without fear of consequences. The best evidence that Trump deep down knows he lost is the pardon of Michael Flynn. Flynn will be only the first of many and a few will be controversial, but, historically speaking, it will be difficult to surpass the controversy of past pardons and even more difficult to surpass past presidents’ numbers. Of course, the entire premise of this article will change if he attempts to pardon himself.
First as always, the Constitution. Article II, Section II reads, “He shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” In other words, it is perfectly legal for Trump to pardon anyone he sees fit for any reason.
Every pardon Trump grants will seem provocative, but compared to past ones they may actually be tame. That is, unless he pardons his kids or himself. When comparing presidents to Trump, it is always good to look at Andrew Jackson, one of the past leaders with whom Trump has much in common with. Jackson has one of the most interesting pardon stories in history. In 1830, two men were convicted in court of robbing mail trains and putting the mail carriers’ lives in danger. The two men, James Porter and George Wilson, were sentenced to death as per the law for robbing the mail with use of deadly force.
Porter was hanged, but a massive campaign began to spare the life of Wilson. At first, Jackson was hesitant to interfere with the courts. The train conductors had testified the two men used violence to take the train. Yet, prominent men, including Baptist minister Thomas Porter, befriended Wilson and his family. Porter began to publish accounts of the trial and helped Wilson’s mother write an appeal to the president. As the case became more well-known, Jackson received a petition signed by hundreds, including leading lawyers and ministers. They wanted Jackson to consider Wilson’s young age and admission of guilt. Jackson eventually came around and pardoned him of the capital crimes, leaving him with a twenty-year prison term.
Yet not all were happy with the pardon of one violent criminal, especially when the other, Porter, had been hanged. One local Philadelphia merchant, James Gowen, wrote Jackson that he understood the mass outpouring of sympathy and the number of signatures, but compared it to the same sympathy and signatures against Indian removal, which Jackson ignored. Gowen then wrote, “Far be it from me to throw any obstacle in the way of clemency, but I conceive it my duty to apprise your Excellency, that if Wilson be pardoned and Porter executed, it will produce a strong sensation among the Irish.” Gowen later claimed that Wilson was pardoned because he was native-born while Porter was Irish and so not worthy of Jackson’s time.
Jackson’s camp released its own version of the pardon, claiming Wilson was released because “his youth and inexperience in crime, his full confession and Christian penitence, and the earnest supplications,” while Porter was the ringleader and hardened criminal. In the end it did not matter. Wilson actually refused the pardon, claiming it was his moral obligation to accept the punishment for his crimes. The case went to the Supreme Court, which ruled you cannot force a pardon on someone who refuses it. Wilson was eventually hanged, making this pardon one of the most controversial and perplexing.
As for numbers, I don’t know yet how many Trump will pardon, but it is doubtful he will be record- setting. FDR, in his four terms, pardoned 2,819 individuals. In modern times, the president with the most pardons is Trump’s predecessor, President Obama. He pardoned and commuted more than 2,000. His most controversial was the pardon of Chelsea Manning, who had served only seven of her thirty-five years. Manning had been convicted of leaking classified military information. Advocates had been pushing for Manning’s release after attempted suicides and the military’s lack of action on Manning’s request for gender reassignment surgery. As expected, Obama’s pardon was highly criticized from the right and the military.
Pardons can be extremely controversial and self-serving for presidents. Most wait until their last days in office to hand out the most provocative ones. The Constitution puts no parameters on pardons except for impeachment. Trump will probably have a few controversial ones, but, historically speaking, it will be hard to top those that have come before.
Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at Historicallyspeaking.blog or on Facebook.