December 2024 and January 2025 may possibly go down in history as one of the most politically significant moments in recent history. In December then-President Joe Biden broke a record by issuing pardons or commuted sentences of more than 1,500 people. Several of his pardons were preemptive ones for family members and other politicians. Biden’s most controversial pardon was for his son Hunter, which Biden promised during the campaign that he would not do.
Then, in December alone, Biden signed 13 executive orders on his way out of office. Once President Trump was inaugurated, Trump pardoned around 1,500 people who were involved in the Jan. 6 riots and signed more than 45 executive orders.
Personally, I question the constitutionality of many of these executive orders; many of these should fall under the authority of Congress. I also have ethical questions about Biden’s pardons. As for the Trump ones, I do agree with some but do feel that the leaders and those who were violent or destructive should be punished for their actions.
The difference between the executive orders and the pardons are that the former are constitutionally questionable while the latter, while I disagree with many of them, all fall within the scope of the president’s rights. Even more, historically speaking, Trump pardoning those accused of insurrection were not the first a president has done so. You may be surprised to see who the first president was.
First, as always, the Constitution. Article II, Section 2, Clause 1 reads, “The President… shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” As I have discussed several times in this column, the Constitution can be extremely vague, and this clause has raised countless questions over the years. One question that was never answered during Trump’s first term was if self-pardoning was allowed. The Supreme Court never made a ruling on that situation as Trump did not try it. However, for many other scenarios the Court has ruled with the 1866 Ex parte Garland case probably being the most important.
In that case, Congress had passed a law that forbade any member of the Confederate government to hold a court position. Augustus Hill Garland of Arkansas fit into that category but had been pardoned by President Andrew Johnson, so Garland sued on grounds that the law should not apply to him. The Court agreed with a 5-4 decision that stated, “The [pardon] power… extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.”
Other than state crimes, civil cases, and impeachment, Ex parte Garland basically gives the president unchecked pardoning power. Not only can the president pardon someone for a crime before they are tried, like Gerald Ford did for Richard Nixon, but they can pardon anyone for a crime they committed that no one even knows about — like Biden possibly did for his family. It should be noted that presidents cannot pre-pardon for a crime; the act must have been committed before the blanket pardon is issued. However, the pardoning power is so strong that presidents can even pardon someone for the most serious crime in the Constitution: treason. In fact the first president to do so was none other than George Washington.
The ones that most remind me of the Jan. 6 pardons were those of the Whiskey Rebellion. The rebellion came about from a decision of America’s favorite rapper, Alexander Hamilton, who had been put in charge of the Treasury Department and was tasked with getting America out of the debt incurred from the Revolutionary War. Hamilton issued what became known as Reports on Public Credit, which, among many topics, said the way the government would earn money was though tariffs, selling of public lands in the west, and a tax on whiskey (really any distilled alcohol).
There are two schools of thought about the tax. One is that Hamilton had no idea the hubbub he would create. The other — and I lean this way — is that he knew exactly what would happen. One of the reasons the Constitution was even created was that under the previous government, the Articles of Confederation, were not strong enough to stop Shays’ Rebellion. These scholars believed Hamilton, trying to show the strength of new government, hoped the tax would lead to an uprising so that he could crush it and show there was a new sheriff in town. The Broadway play forgets to talk about this story.
Whatever the thought process was, the tax did lead to problems on the western frontier, which at this point in time were areas like western Pennsylvania. Small farmers there were hit hard as it was easier for them to turn their grains into alcohol and ship east rather than ship wagons full of raw grain. Larger farms also were affected by this, but they could handle it. Many of these small yeoman farmers had learned as soldiers in the Revolutionary War that when the government became tyrannical, they had the right to fight back. And fight back they did. At first, the farmers just refused to pay the tax. But in 1794 when they were pressed, they attacked tax collectors and burned down the home of one of them in Pittsburg.
With this, Hamilton convinced Washington to call out the militia, and for the only time in American history, the president rode at the head of the army to Pennsylvania to squash the rebellion. Washington did not travel the entire distance. By the time the militia arrived the rebellion had broken up. Of the 150 men the militia arrested for treason, two were convicted. Yet after the trial, Washington pardoned everyone involved, even the ones not arrested, calling them “misled.” Washington wanted to show his subjects that the government had the power to enforce its laws yet could also show mercy.
While the pardons of the Jan. 6 rioters and the Whiskey Rebellion were both done for political reasons, they don’t seem to be the same. It’s difficult to call the Biden family pardons political as much as family preservation. It seems odd to give the president this much power, but Hamilton argued it was the right thing to do. In Federalist No. 74 he said, “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.” So while we all just witnessed what I see in some ways as a reach in presidential powers, at least with the pardons what they did is completely Constitutional.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.
