Purpose, Not Specificity, Limits the Pardon Power: A Rejoinder to Rappaport

Several weeks ago, I argued in these pages that President Donald Trump’s rumored imminent spree of pardons to friends and family will not be constrained by a supposed constitutional requirement that they be specific, rather than generic or comprehensive. I am grateful to my friend, Professor Aaron Rappaport, for composing a spirited reply. Although I remain unconvinced, his case deserves a response.

Professor Rappaport contends that the broad language of Article II of the Constitution bestowing on the American president “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” contains an implicit requirement of specificity. He avows his argument to be “originalist.” Yet he cites nothing in the text or structure of the Constitution, and no passages from the Framers’ debates in Philadelphia or the ratification debates in the states. Rather, he claims that the Framers intended the President’s pardon power to be co-extensive with that of the British Crown, and that, at the time of the framing, there existed a clear rule requiring specificity in royal pardons which the Framers incorporated into the American constitution sub silentio.

I disagree, both because there was no such clear rule in eighteenth century British pardon practice, and because American presidents have issued non-specific pardons for over two hundred years with the express approval of the federal courts. The primary historically-derivable limit on the scope of a president’s power to pardon another for a past federal crime is one of purpose – that is, whether the language of a pardon reasonably expresses the president’s intention to include an offense for which the recipient seeks relief. Standing alone, that limit will pose no serious obstacle to sweeping pardons by Donald Trump.

General Pardons Were Common in British Constitutional History

Perhaps the greatest obstacle to Professor Rappaport’s thesis is the consistent practice of both British monarchs and American presidents of issuing general pardons or amnesties that not only extended to large numbers of persons whose identities were unspecified and indeed often unknown, but also provided clemency for multiple offenses without specifying any particular acts or events violative of law. Professor Rappaport concedes the long practice of royal general pardons, but claims the monarch somehow lost this power after the Glorious Revolution of 1688.  He maintains that the Framers were aware of the loss and incorporated their understanding as an unstated, but implied, restriction on the president’s pardon power under the Constitution.

Professor Rappaport misreads British constitutional history. It is undisputed, and indisputable, that British monarchs issued group pardons from the time of Magna Carta forward. Moreover, in 1535, during the reign of Henry VIII, Parliament passed an act consolidating pardon power wholly in the Crown, declaring that, as to “any treasons, murders, manslaughters or any kinds of felonies”:

the King’s Highness, his heirs and successor Kings of this realm, shall have the whole and sole power and authority [of pardoning] united and knit to the Imperial Crown of this Realm, as of good right and equity it appertaineth, any grants, usages, prescriptions, act or acts of Parliament, or other things to the contrary thereof notwithstanding.

This statute remained in effect throughout the 1700s, as affirmed by William Blackstone in his Commentaries on the Laws of England (which, as Professor Rappaport correctly notes, was widely read by the lawyers of the founding generation). Indeed, it was not formally repealed until 1967. Both before and long after the 1535 statute, the Crown issued group pardons, sometimes by simple royal proclamation, sometimes in the form of a bill of pardon proposed by the Crown, but ratified by Parliament.

The reasons for obtaining parliamentary assent are a bit unclear. Some part was probably that pardons were both technically tricky and politically sensitive insofar as they could void legislation or affect particular cases Parliament cared greatly about. Likewise, general pardons were often issued in conjunction with negotiations between monarch and Parliament over bills of supply, i.e., appropriations of funds for the crown and its administration. Thus, it was prudent to negotiate precise terms and formalize them in a legislatively approved bill.  But even the pardons which secured parliamentary imprimatur were universally framed as expressions of the Crown’s exclusive prerogative of mercy.

Professor Rappaport suggests that the events and aftermath of the Glorious Revolution of 1688 somehow diminished the king’s pardon authority, particularly as to general pardons. He is correct that the 1700 Act of Settlement barred the Crown from pardoning impeachments, a provision designed to prevent dilution of parliament’s power to control royal behavior by removing and punishing the Crown’s ministers. But that had no effect on the Crown’s sovereign authority to issue pardons, general or particular, for crime under the jurisdiction of regular courts.

In his law review article on pardon specificity (though not in his response to me), Professor Rappaport contends that a provision of the 1689 Bill of Rights eliminating the king’s “dispensing power” limited his pardon authority. But that is not so. The two relevant features of the dispensing power, somewhat simplified for our purposes, were, first, that it allowed the Crown to release a subject from the obligation of obeying laws in the future, but did not pardon past infractions, and second, that it could apply to offenses we would characterize as regulatory, but not to ordinary common law or statutory crimes, especially those said to be “malum in se” or wrong in themselves. In any case, a primary impetus for eliminating the dispensing power was parliamentary distress over the Crown’s tendency to use it to create commercial monopolies; it had nothing to do with pardoning felons, individually or en masse.

There is no evidence of which I am aware that in the decades of the 1700s before the American constitutional founding the law governing royal pardon power experienced any significant alteration, whether as to individuals or groups. The best evidence that the pardon power continued to lodge firmly and exclusively in the person of the King is found in the very commentators upon whom Professor Rappaport relies. In the fourth volume of his Commentaries, published in 1769, Blackstone cites the 1535 act consolidating the pardon power in the Crown, and then declares that, “the king hath the whole and sole power [of pardoning], united and knit to the imperial crown of this realm.” In his very next paragraph Blackstone expatiated at length on the advantages of this royal monopoly, particularly relative to democracies.

In my original essay, I noted as an example of eighteenth-century royal group pardons that, in 1750, King George II issued a general pardon through the vehicle of a parliamentary bill. Professor Rappaport interprets Parliament’s involvement in that action as an indication that by the early 1700s the Crown had lost the power of group pardon. But I as noted above, these joint exercises had been common for centuries. The preamble of the 1750 pardon bill was explicit that the authority for the pardons it granted was the King, not Parliament.  Blackstone is again helpful in emphasizing the royal source of pardon authority. In his Commentaries, he notes that regular legislation originates in Parliament, and having passed both houses must receive royal assent.  However, a bill granting pardons required no referral back to the monarch because it is “an act of grace, which originally proceeds from the crown, and has the royal assent in the first stage of it.”

The American Decision to Leave Pardons to the President

Professor Rappaport is correct in perceiving that during the 1600s and mid-1700s the relation between Parliament and Crown was evolving in the direction of increased legislative authority and shared sovereignty, a notion expressed in the peculiarly British metaphysics of the phrase “the King in Parliament.” By the time of the American Revolution, acts of broad societal consequence, like a general pardon, that were within the theoretical province of the monarch alone were increasingly taken jointly.

With respect to the pardon power, the American Framers might have taken cognizance of this trend and shared the power between President and Congress, either as to all pardons or only as to group amnesties. But they didn’t. The delegates to the Constitutional Convention discussed giving Congress a role in pardons, but rejected the idea, lodging it exclusively in the President with no requirement of legislative consultation or assent. Moreover, it is clear that the Framers quite expressly intended the president’s pardon power to include group amnesties.  The need for such authority was one of the primary arguments offered in favor of the breadth of the pardon power as written. For example, in Federalist 74, Alexander Hamilton wrote:

But the principal argument for reposing the power of pardoning in this case in 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….

Moreover, as Professor Rappaport’s own research painstakingly documents, American presidents have issued group pardons or amnesties more than thirty times. Some of these amnesties are more narrowly targeted than others, but it simply cannot be denied that as a class they, like royal general pardons in England, are non-specific in that they cover multiple people, multiple violations of law, ranges of time, and are not limited to discrete criminal transactions.

Interpreting American Group Pardons        

Professor Rappaport forthrightly concedes that the prevalence of group non-specific pardons presents a challenge to his claim that there is an implicit constitutional requirement of pardon specificity. He tries to downplay them in two ways. First, he notes that there have been relatively few amnesties. The more telling fact is that nineteen presidents issued them, beginning with four — Washington, Adams, Jefferson and Madison — who were core members of the founding generation which, according to Professor Rappaport, understood there to be a specificity requirement. And while the number of amnesty proclamations may have been small, the number of persons pardoned by them is orders of magnitude larger than the sum of all the individual pardons ever issued.

Second, Professor Rappaport tries to distinguish these group pardons as predominantly “military amnesties” whose scope is uniquely justified by the president’s commander-in-chief power. Since Professor Rappaport does not specify which group pardons he counts as military, it is difficult to respond to this claim in detail. Certainly, there is no support for this suggestion in any American court decision. Indeed, in multiple opinions, the Supreme Court affirmed the validity of President Andrew Johnson’s post-Civil War general pardons, but neither in these opinions nor later did the Court refer to the commander-in-chief authority. Instead, the Court has consistently justified the breadth of the President’s pardon power by reference to the open-ended language of Article II and the Framers’ understanding of the scope of the English royal pardon power.

Moreover, Professor Rappaport himself has identified at least five amnesties by five different presidents – Adams (Alien & Sedition Act), Polk (Sedition Act), Harrison (Mormons), Cleveland (Mormons), and Wilson (persons under suspended sentence) – with no evident connection to warfare. Finally, the attempt to associate general pardons or amnesties categorically with a president’s Article II commander-in-chief power is a particularly odd argument coming on the heels of the contention that the scope of American presidential pardon power should be tightly constrained by reference to British precedent. General pardons and amnesties were a feature of British practice for centuries, and only occasionally had any particular connection with war.

Must Individual Pardons Be More Specific Than General Ones?

Despite the overwhelming evidence that presidential pardons or amnesties issued to thousands of unnamed persons can be non-specific, Professor Rappaport holds stoutly to the position that, at least as to individuals, pardons must be specific. His claim is that there was a rule to this effect in British law at the time of the founding which was so clear and so universally understood that the Framers would have expected readers to imply it into the open-ended Article II pardon clause.

The problem with Professor Rappaport’s thesis is not that there were no rules in eighteenth century British law governing the drafting and interpretation of pardons, but that there was a bewildering web of them. For example, there was a rule in some periods that the King’s pardon would not be interpreted to cover murder with malice, and some other serious crimes like treason or rape, unless the pardon document specified the crime and victim, and perhaps also contained the words “non obstante,” meaning roughly “notwithstanding the ordinary presumption against pardoning such a crime.”

On the other hand, according to one of the sources upon which Professor Rappaport relies, William HawkinsPleas of the Crown, “a pardon of ‘all misprisions, trespasses, offences, and contempts,’ will … pardon any crime which is not capital” (except possibly “champerty or confederacy”). Hawkins emphasizes that pardons ought to be construed in favor of the beneficiary and against the Crown, and notes that in pleading a pardon in bar of a particular offense, “The party shall not be obliged to lay the stress of his case on any particular words or clause in such pardon, but may take advantage of the whole.”

There was also the interpretive presumption discussed in my original essay that a pardon using general language might not cover a particular crime if the king was unaware of it at the time the pardon was issued, the theory being that the pardon would not have issued had he known. Professor Rappaport and I disagree about the meaning of certain passages relating to this idea in sources like Blackstone and Hawkins. I think they express a special rule designed to prevent inadvertent overbreadth in pardons. He finds a more universal application.

In addition, Professor Rappaport demonstrates both his candor and the breadth of his scholarship by pointing to British authorities from the founding period holding that generally worded pardons of as-yet-uncharged crimes were valid, even though he reads other contemporary sources to the contrary.

Which of us is right about the antique stylings of Blackstone, Hawkins, and their contemporaries matters less than the fact that the pardon law they were discussing is mind-bendingly complicated, and on many points obscure, even to careful students of the subject.  Remember, Professor Rappaport’s originalist theory is that British pardon law at the time of the American founding contained a specificity requirement so unambiguous, so distinct from all the other nuances of pardon law, and so well-known that the drafters of the Constitution could safely assume everyone knew about it without troubling to write it into the text. Neither the British source materials, founding era debates, or subsequent American usage support that claim.

Specificity Misses the Point

Despite the intricacy of old British pardon law, at least two simple principles – one of power and the other of purpose – can be discerned throughout centuries of complex practice. First, the sovereign, whether conceived as the individual monarch or the compound “King in Parliament,” had the power to pardon effectively all criminal offenses. Second, when construing any pardon, general or individual, the determinative issue was the sovereign’s purpose, that is, whether the words of the pardon expressed with reasonable clarity an intention on the part of the sovereign to pardon the crime for which clemency was sought. Those principles were, I think, adopted by the Framers, and later by judges, into American practice.

That is why the argument between Professor Rappaport and me over a specificity requirement, although lots of nerdy antiquarian fun, fails to address the real concern both of us share:  that within a few weeks, Donald Trump is quite likely to issue pardons to his family and friends that purport to cover a vast array of potential criminal liability.

Trump will likely want pardons with broad effect without specifying in embarrassing detail all the sleazy conduct they cover.  Professor Rappaport’s argument would complicate this effort with a specificity requirement which, in the end, can do nothing more than force Trump to show his work. Sadly, it might not even do that. Trump could be very specific about the coverage he intends by naming a recipient, enumerating a time period (as has commonly been done), and either listing every federal crime his lawyers can think of, or just by saying “all federal crimes,” adding, if he chose, a modern equivalent of the old “non obstante,” such as “and I really mean all.”  A pardon phrased this way would be linguistically specific and would convey unmistakably the scope of the president’s purpose.

The problem with such a pardon is not that it is non-specific, but that it would be a self-aggrandizing abuse of power exempting Trump’s intimates and courtiers from the ordinary operation of law.  It would appropriate the breadth of President Gerald Ford’s pardon of Richard Nixon, without Ford’s disinterested rationale of promoting national healing. I would very much like for there to be a constitutional barrier to such a pardon. But unless there is some other limiting principle that neither Professor Rappaport nor I have yet articulated, blanket pardons issued to Trump’s family and friends may prove legally effective.

Image:  WASHINGTON, DC – MARCH 20, 2020: U.S. President Donald Trump speaks as his daughter and senior adviser Ivanka Trump looks on during a news briefing on the latest development of the coronavirus outbreak in the U.S. at the James Brady Press Briefing Room at the White House March 20, 2020 in Washington, DC. With deaths caused by the coronavirus rising and foreseeable economic turmoil, the Senate is working on legislation for a $1 trillion aid package to deal with the COVID-19 pandemic. President Trump announced that tax day will be delayed from April 15 to July 15. (Photo by Alex Wong/Getty Images)

 

About the Author(s)

Frank O. Bowman, III

Frank O. Bowman, III, is University of Missouri Curators’ Distinguished Professor and Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri School of Law, as well as Dean’s Visiting Scholar at Georgetown University Law Center. He is a former federal and state prosecutor. His most recent book is High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge University Press 2019). Follow him on Twitter (@FOBowman3).