On Thursday, former President Donald Trump told conservative radio host Wendy Bell that if he were to return to the Oval Office he would grant pardons and also apologize to participants in the January 6 insurrection. Trump promised that if “I decide to run, and if I win, I will be looking very, very strongly about pardons, full pardons…with an apology to many.”
While our founding fathers imagined a broad pardon power that might apply to insurrectionists as a means of calming the national temperature and preserving the Republic, they never envisioned it would be used in the way Trump is describing: to support insurrectionists and reward violence as part of an ongoing assault against American democracy.
It’s worth delving into that history to understand just how warped and dangerous Trump’s latest statements are, but first a look at more recent events.
In addition to Thursday’s pardons comment, last week Trump also acknowledged that he has met with some January 6 defendants at his Mar-a-Lago office and that he is helping some financially. Trump described them as “incredible” and said “It’s a disgrace what they’ve done to them. What they’ve done to these people is disgraceful.”
Also, recall his profession of “love” for the insurrectionists as the attack on the Capitol was still going on.
More recently Trump claimed that the people who attacked the Capitol, assaulted police officers using weapons, and chanted Hang Mike Pence were “peaceful people.” He has even call them “patriots.”
Planning to help people being prosecuted for the attack on the Capitol, Trump noted, is already underway. “We’re working on it very hard, we’re working with legal.”
Last week’s promise would upend American history and the very rationale for granting the president the clemency power and further sow division. It is very much in keeping with Trump and his supporter’s embrace of violence as a political tool. Recently, for instance, Sen. Lindsey Graham threatened that there would be “riots in the street” if Trump were prosecuted in the ongoing criminal investigation of his apparent pilfering of and refusal to turn over documents marked as classified.
This was also not the first time Trump has talked about granting clemency or expressed sympathy for the January 6 rioters.
Trump raised the prospect of pardons for the January 6 insurrectionists earlier this year. This past January he told the audience at a rally in Texas that, “If I run and win, we will treat those people from January 6th fairly. And if it requires pardons, we will give them pardons….”
The people to whom Trump was referring include, according to The Washington Post, “about 370 rioters [who] have pleaded guilty to federal charges or been convicted, and more than 220 [who] have been sentenced.” The Post’s total list of offenders who might be in line for a Trump pardon includes “[m]ore than 800 defendants [who] have been arrested and federally charged from nearly all 50 states and the District of Columbia.”
The pardon list might also include several of Trump’s supporters and people who were involved in planning the January 6 protests who sought preemptive pardons from him right after the January 6 insurrection, which at the time—when Trump was under threat of impeachment and conviction—were not granted. And maybe even Trump himself.
As troubling as the thought of pardoning insurrectionists might be, that idea is not new to American history. Historically, though, such pardons were considered tools for quelling national unrest, not for empowering a violent mob and threatening to unleash them anew on the Republic.
The thought that presidents might use their pardon power to pardon insurrectionists was first raised in 1788 by Alexander Hamilton. Hamilton discussed this possibility to bolster his argument that the pardon power should be lodged solely in the president and that the occupant of that office should have maximum leeway in exercising it.
In the Federalist Papers he argued explicitly that the president’s clemency power should extend even to what he called “the crime of treason.”
Hamilton wrote that
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 tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.
“Restoring the tranquility of the commonwealth” hardly seems to be part of Trump’s playbook with the Jan. 6 insurrectionists. Rather, it seems much more likely that he wants to offer latitude as a means to empower future violence on his behalf. Indeed, this week on his social media platform, Trump for the first time publicly issued further calls for him to be immediately restored to power via unconstitutional means, as was attempted on Jan. 6. Trump posted that he should “declare[d] the rightful winner” and reinstated to power or that a new election should be held “immediately!”
Is it any wonder that more than half of Republicans, according to a recent poll, say they believe political violence will increase “a lot” in the coming years and that a new civil war is likely in the next ten years. Again, encouraging the realization of this dream of political violence is not what the Founders had in mind, even as the pardon power was used early on to forgive rebels who were seeking contrition and to promote domestic tranquility.
Indeed, it didn’t take long for Hamilton’s 1788 endorsement of the use of clemency in times of rebellion and insurrection to materialize. In fact, the very first presidential pardon was issued by George Washington in 1795 to men who had been convicted of treason for their participation in Pennsylvania’s Whiskey Rebellion. These rebels had taken up arms to resist the federal government’s plan to impose excise taxes on whiskey.
In a strange twist of history, Hamilton warned Washington not to show leniency to participants in the Whiskey Rebellion. He feared that doing so would make this country’s first president appear weak and damage his political standing. As he told Washington, “My present clear conviction, if competent evidence can be obtained, [is] to exert the full force of the Law against the Offenders.”
Washington rejected his advice even as he embraced the hope Hamilton expressed in the Federalist Papers that pardoning insurrectionists would restore “tranquility” even as he rejected his immediate advice in this case. Washington said that he was granting clemency to the Whiskey rebels because of “their contrition for the past and assurances of their good behavior in future.”
Washington is not the only American president to use clemency to try to bring the nation together after an insurrection.
To take two other examples, during the Civil War, President Abraham Lincoln issued 64 pardons for war-related offences, including conspiracy, treason, rebellion, holding an office under the Confederacy, and aiding the rebels; and, in an 1868 Christmas Day pardon, his successor Andrew Johnson issued a blanket amnesty to all Confederate soldiers.
Following Hamilton’s maxim, Johnson explained that he hoped this act would “renew and fully restore confidence and fraternal feeling among the whole, and their respect for and attachment to the national [e.g., federal] government, designed by its patriotic founders for the general good.”
Trump’s sympathy for and promise to pardon the January 6 crew would be very much in keeping with his use of clemency during his presidential term to reward people whose crimes showed particular contempt for the rule of law itself, but personal loyalty to Trump. It is a far cry, though, from what Hamilton envisioned and what Washington and Lincoln used clemency to accomplish: to bring insurrectionists back into the fold and cement their allegiance to the Constitution.
They would all turn over in their graves at the thought that an American president would use the clemency power to support and reward rebels whose purpose was to undermine the very constitutional order he took an oath to defend—and whose ongoing allegiance that former president is weaponizing as a continued threat to the Republic.