James Rosen argues for limits on presidential pardon power

George Mason warned delegates that broad clemency power could shield presidential wrongdoing

In an opinion column titled “The US founders made a grave error in granting presidents pardon power,” Rosen argued that the Constitution’s broad presidential pardon power did not restrain Donald Trump. Rosen opened with what he called Trump’s abuses: “betraying Ukraine,” dispatching “masked agents who killed Americans to deport US citizens,” and “pulling out of accords controlling climate change and Iranian nuclear weapons.” He predicted that historians looking back decades from now would place Trump’s abuse of pardon power at the top of that list.

He wrote that the abuse began on the first day of Trump’s second term, when Trump pardoned more than 1,500 insurrectionists who had stormed the US Capitol on January 6, 2021. Rosen said the people pardoned had used violence in a failed attempt to keep Trump in office after he lost his re-election bid. He argued that the motive made the case unlike earlier presidential pardons and wrote, “No previous president had abused his pardon power to reward the subversion of US democracy.”

Rosen also cited accounts from the New York Times, Wall Street Journal and 60 Minutes that Trump had overseen what he called a “robust pardons market” in which friends or relatives of criminals offered to pay millions for presidential clemency. The market claim was presented through Rosen’s account and his named sources rather than as independent reporting in the column.

Rosen placed Trump’s clemency alongside several earlier presidential pardons. He cited Jimmy Carter’s protection of his brother Billy, Joe Biden’s pardon of his son Hunter, and Bill Clinton’s action on January 20, 2001, his last day in office, when the president pardoned 140 people and commuted the sentences of 36 others. Clinton’s list included his brother and several large campaign donors. Rosen also cited Gerald Ford’s pardon of Richard Nixon following Nixon’s resignation over the Watergate scandal, saying the decision was widely criticized at the time, though historians had assessed it more kindly since.

As the midterm elections approached, Rosen said inflation and the war in Iran were the top issues voters cited, but they had not forgotten January 6. Almost six years later, he wrote, a large majority of Americans told pollsters that Trump’s pardoning of violent insurrectionists was wrong.

Rosen’s historical argument turned on a warning George Mason delivered at the 1787 Constitutional Convention in Philadelphia. Mason cautioned the new country’s most powerful men — including George Washington, James Madison, Benjamin Franklin and Alexander Hamilton — against giving future presidents too much power. He told fellow delegates that the risk was greatest in the absolute pardon power then being enshrined in the country’s supreme law, and spoke 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 were closed against eavesdroppers, and the delegates sweltered in their elaborate attire. Fifty-five men came to the gathering, but 16 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 when Mason warned: “It may happen, at some future day, that he will establish a monarchy and destroy the republic.”

Mason spoke on September 15, 1787, two days before the convention concluded. Rosen suggested the delegates may have been too hot and exhausted to focus, but they 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 at the Virginia Ratifying Convention. He said: “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.” Rosen described Mason’s effort as doomed. 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 a president who protected it would face impeachment and possible removal from office.

Rosen wrote that “not quite 236 years later” Trump had proved the fallacy of Madison’s logic. He noted that Trump had been impeached twice but was elected to a second term.

Mason was one of only three delegates who refused to sign the Constitution. He declared that “he would sooner chop off his right hand than put it to the Constitution as it now stands.” Alexander Hamilton, among the founders who favored the strongest federal government, led the effort to quash limits on presidential pardon power. He and his allies cited the centuries-old British tradition called the “royal prerogative of mercy,” under which English kings and queens pardoned criminals. Rosen called that rationale contradictory and bordering on irrational because the delegates were fashioning a governing document to cement American independence from Britain and its monarchical government. He also said British monarchs had pardoned far fewer criminals than US presidents in subsequent centuries.

Rosen is a former political reporter and Pentagon correspondent for McClatchy. He has received awards from the National Press Club, Military Reporters and Editors, and the Society of Professional Journalists, which in 2021 named him its top opinion columnist.