The pardon power is the only authority that the US Constitution places entirely in one person’s hands, immune from legislative override or judicial review. Alexander Hamilton, defending this arrangement in Federalist 74, understood the danger. But he wagered that shame would restrain abuse – that a president, bearing sole blame for corrupt use of the power, would hesitate where a legislature might not. “The sense of responsibility is always strongest,” Hamilton wrote, “in proportion as it is undivided.”
Hamilton was wrong. He did not anticipate a shameless president.
Hamilton’s case for the pardon was political, not moral. He barely mentioned mercy. The power’s core purpose was emergency peace-making: “in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”
This was the rationale for Massachusetts’ offer of clemency to participants in Shays’s Rebellion, and for George Washington’s pardon of those who took part in the Whiskey Rebellion during his presidency. The pardon was an ad hoc instrument for ending conflict after rebellion was suppressed – a discretionary tool for restoring peace when peace took priority over justice.
Crucially, Hamilton insisted that clemency must remain unpredictable. “It would generally be impolitic beforehand,” he wrote, “to take any step which might hold out the prospect of impunity.” A standing promise of pardons would encourage rebellion. The power works only if potential lawbreakers cannot count on forgiveness in advance.
Trump has inverted every element of this design. He has transformed the pardon from an instrument for ending conflict into a weapon for stoking it, from an ad hoc exercise of discretion into a standing promise of impunity, from a tool of reconciliation into a system for rewarding loyalty. Hamilton envisioned a president using clemency to heal divisions after insurrection; Trump pardoned the insurrectionists who attacked the US Capitol on January 6, 2021, only after returning to the presidency four years later, signaling that loyalty to him guarantees impunity.
The effects are already visible in courtrooms and law offices across the US. “If I were any defendant now,” a former senior Department of Justice official told the Financial Times, and “I had the financial wherewithal or connections, my thought would be, maybe I’ll be convicted, but I very well may get a pardon as well.” Defense attorneys are reportedly advising clients that conviction need not be the end for those who meet the criteria. Hamilton’s nightmare has become litigation strategy.
