The US founders made a grave error in granting presidents pardon power | James Rosen

From betraying Ukraine and dispatching masked agents who killed Americans to deporting US citizens and pulling out of accords controlling climate change and Iranian nuclear weapons, the list of Donald Trump’s abuses is long and growing still longer, seemingly by the day.Looking back decades from now, historians will see that at the top of this shameful list is Trump’s utter abuse of his pardon power. It started on the first day of his second term, when he pardoned more than 1,500 insurrectionists who, on 6 January 2021, had stormed the US Capitol.More recently, as documented in astonishing accounts by the New York Times, Wall Street Journal and 60 Minutes, Trump has overseen a robust pardons market in which friends or relatives of criminals offer to pay millions for presidential clemency.Centuries before this unprecedented malfeasance, George Mason tried to warn us.At the 1787 Constitutional Convention in Philadelphia, Mason cautioned the new country’s most powerful men – among them George Washington, James Madison, Benjamin Franklin and Alexander Hamilton – against the dangers of giving future American presidents too much power.The risk was greatest, he told other delegates, in the absolute pardon power then being enshrined in our supreme law. Mason spoke out strongly against granting a president “power of pardoning because he may frequently pardon crimes which were advised by himself”.The convention had dragged on for nearly four months in the oppressive summer heat of Philadelphia, the Constitution Hall windows closed against eavesdroppers, the delegates sweltering in their elaborate attire. Fifty-five men came to the gathering, but 16 had left, driven home to their manors by the heat and humidity.Washington, who would become the newborn nation’s first president in 19 months, presided as Mason addressed his peers. It was as if he had a crystal ball displaying Trump’s cynical visage.“It may happen, at some future day, that he will establish a monarchy and destroy the republic.”Mason spoke on 15 September 1787, two days before the convention concluded. Perhaps they were too hot and exhausted to focus, but the delegates voted against limiting presidents’ pardon power. Even when Mason begged them at least to put treason beyond the pardon realm, they deferred.Two years later, Mason delivered another forceful rebuke, this time at the Virginia Ratifying Convention.“The president of the United States has the unrestrained power of granting pardons for treason, which 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,” Mason said.Mason’s effort, though, was doomed: James Madison, already known as “the father of the constitution” because of his contributions to it, told fellow Virginia delegates that even treason could be within the reach of clemency because presidents who protected it would face impeachment and possible removal from office.As brilliant as Madison was, not quite 236 years later Trump has proven the fallacy of his logic. Despite being impeached twice, he was elected to a second term.Mason would go down in history as one of only three delegates who refused to sign the Constitution. So strong was his opposition, he declared that “he would sooner chop off his right hand than put it to the Constitution as it now stands.”Alexander Hamilton, who among the founders favored the strongest federal government, led the drive to quash limits on presidential pardon power. He and his allies cited a centuries-old British tradition called the “royal prerogative of mercy”, under which English kings and queens pardoned criminals.This rationale, of course, was contradictory bordering on irrational – given that the delegates were fashioning a governing document to cement American independence from Britain and its monarchical government. And in subsequent centuries, British monarchs have pardoned far fewer criminals than US presidents.While inflation and the war in Iran are the top issues voters cite in the forthcoming midterm elections, they have not forgotten January 6. Almost six years later, a large majority of Americans tell pollsters that Trump’s pardoning of violent insurrectionists was wrong.There have been plenty of other bad presidential pardons, from Jimmy Carter protecting his wayward brother Billy to Joe Biden pardoning his son Hunter. Bill Clinton pardoned 140 people and commuted the sentences of 36 others on his last day in office, 20 January 2001, among them his brother and several large campaign donors. Gerald Ford’s pardon of Richard Nixon following his resignation over the Watergate scandal was widely criticized at the time, though historians have assessed it more kindly since then.Trump’s pardon of the insurrectionists, however, stands alone because of his motivation: they used violence in a failed attempt to keep him in office after he had lost his re-election bid. No previous president had abused his pardon power to reward the subversion of US democracy. James Rosen is a former political reporter and Pentagon correspondent for McClatchy who has received awards from the National Press Club, Military Reporters and Editors, and the Society of Professional Journalists, which in 2021 named him top opinion columnist