Long reach of the pardon power: the Framers, Lincoln and Biden

The intriguing President’s Day news that President Abraham Lincoln granted a pardon 160 years ago to President Joe Biden’s great-great-grandfather revived Americans’ fascination with the purpose, concerns, scope and history of this sweeping executive power.

Thanks to the good work of historian David J. Gerleman, we now know that President Lincoln pardoned Moises J. Robinette, a civilian hired as a veterinary surgeon for the Union army, who was court martialed on charges resulting from a brawl on the evening of March 21, 1864. Robinette was found guilty of inciting a “dangerous quarrel,” violating good order and military discipline. Robinette was sentenced to two years of incarceration at hard labor.

Robinette was saved by three army officers who knew him and petitioned Lincoln to grant a pardon. The three officers wrote that the sentence was too harsh. Robinette was “defending himself and cutting with a Penknife a Teamster much his superior in strength and Size, all under the impulse of the excitement of the moment.” This letter supported Robinette’s assertion of self-defense. It finished with a strong reminder that Robinette had been “ardent and influential” in opposing “traitors and their schemes to destroy the Government.”

The officers sent their petition to the newly-elected U.S. Senator from the newly-admitted state of West Virginia, who lent his voice in support and sent it along to Lincoln’s valued private secretary, John G. Nicolay. Nicolay, anticipating future protocol for pardon requests, forwarded the petition to the judge advocate general, asking for a report and recommendation for presidential review. Lincoln, who exalted constitutional government and legal process, read the report and, persuaded by the arguments, issued a pardon to Robinette, writing, “Pardon for unexecuted part of punishment. A Lincoln. Sept. 1, 1864.” The War Department issued Special Orders No. 296, freeing Robinette from prison.

President Lincoln’s exercise of the pardon power was consistent with the aims and purposes of delegates at the Constitutional Convention, who designed the authority for the purpose of correcting miscarriages of justice. The pardon power, defined in Article II, Section 2, provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

The pardon power entails broad discretionary authority for the president. The Framers of the Constitution, well aware of the availability of the pardon authority and its use in ancient Rome, fixed their gaze on the practice in England as the starting point for their own design. The English monarchy had awarded pardons for centuries, sometimes to promote principles of law and justice, but often for less than meritorious reasons. Kings, notorious for their spendthrift ways, exhausted parliamentary funding – referred to as “gifts” to the king – and turned to debtor prisons for aid. The king offered prisoners an immediate release in return for a pledge to pay their debts later.

The monarchical abuse of the authority – pardons to aides and cronies who would shield the king for involvement in questionable acts – provided a cautionary lesson to America’s founders. The Framers’ greatest concern about vesting the pardon power in the executive, the Convention debates reveal, was that the president would pardon those who might aid his subversion of the Constitution and laws and thereby screen himself from judgment, accountability and punishment.

On Sept. 10, 1787, George Mason of Virginia echoed the concerns of members of the House of Commons a century earlier, who felt helpless to prevent monarchical abuse of the pardon power. Mason said of the presidential pardon power, “it may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.”

A president who could commit crimes with the help of those whom he pardoned, the Framers understood, would place himself beyond the reach of accountability and, essentially, above the law. That was unacceptable to a generation committed to the rule of law.

Accordingly, the Framers took steps to curb that possibility. First, the president was made amenable to the law, like all other citizens. Second, a president who abused the pardon power, as Alexander Hamilton and other delegates explained, could be impeached. It is useful to recall that the Framers viewed the impeachment clause as a critical means for bringing an errant president to heel and preserving the Republic. Third, as Hamilton explained, delegates believed that the eyes of the nation would be upon the president when he exercised the pardon power, and that the fear of public scrutiny and scorn, as well as potential embarrassment, would restrain presidential actions.

Presidents have granted pardons for various reasons since the dawn of the Republic. The history of the pardon power, with some clear exceptions, reflects fairly careful judgments and judicious practice. Lincoln’s exercise of the pardoning authority, as seen in the cases of Moises Robinette and the roughly 200,000 confederates who received executive clemency as a means of restoring the Union, comported with the Framers’ expectations. We would do well, most Americans agree, if we had more presidents like Lincoln.

This column is supported by Humanities North Dakota, a nonprofit dedicated lifelong learning, and the North Dakota Newspaper Association.