“insurrections, treason, and the pardon power”

The Federalist Papers #74 on insurrections, treason, and the pardon power: an argument that such pardons would be invalid as “arising in a case of impeachment”

The Insurrectionists from January 6 are already asking Trump for pardons. Probably the only thing that would hold him back from doing so is his innate selfishness: what would be the benefit to *him*?

The thought that Trump could issue Got Out of Jail Free cards to the very people he incited to riot is mind boggling.

But it’s at least possible that he might not have the right to do so. 

Article III, Section 2 of the Constitution provides that “The President … shall have the power to grant] reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.” 

That last bit isn’t just my emphasis. It’s also the emphasis placed on the quote in the discussion of the President’s pardoning power in The Federalist No. 74, which also discusses the right of the President to issue pardons in the cases of sedition and treason. Below is the entirety of the relevant discussion: 

Humanity and good policy conspire to dictate, that the benign prerogative of The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime leveled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community …. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. 

On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.

On the one hand, the above passage would seem to support the right of Trump to pardon the seditionists of January 6. But I think there is an important distinction.

Federalist No. 74 envisions the President intervening in moments of societal peril so that “a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.” While certainly not exactly on point, this is akin to Jimmy Carter’s blanket pardon of Vietnam War draft dodgers – an attempt to heal a festering rift in society. In the hypothetical noted by the Federalist papers, it defuses an imminent rupture.

But that is exactly opposite to the case where the sedition has occurred precisely *because* of incendiary actions of the very President himself. In this case, take out Trump’s own incitement, and there is no riot or sedition.

Further, Trump has in fact *been impeached* by the House, whether or not he is ever convicted by the Senate. So the criteria for the exception – “except in cases of impeachment” – while they may specifically be meant to exclude pardons for those civil officers who have been impeached, nevertheless may apply here. Literally, textually (for those who are devotees of textualism, as current members of the Supreme Court allegedly are), the acts for which the insurrectionists are seeking pardons exactly gave rise to this “case of impeachment.” Further, had the Founders chose to do so, they could have said that the exception only applies “in cases of impeachment *and conviction.*” They didn’t include that qualification, and in other cases, e.g., theSlaughterhouse Cases concerning the 14th Amendment, the Supreme Court has held such omissions to be meaningful. 

In short, even if Trump does issue pardons to the insurrectionists, I think prosecutors should argue that the pardons are invalid under the Constitution. The cases would surely be taken to the Supreme Court, where both the textualists and those looking to the spirit of the law, surely aware that these cases are “sui generis” (I.e., in a class all by themselves, extremely unlikely ever to be repeated), might decide that the pardons arose “in a case of impeachment” and hold that the proffered pardons are null and void.