Donald Trump, George Washington, and the Strange Origins of the Presidential Pardon
It’s not like before Trump the presidential pardon was held in high regard. Many a pardoned sleazebag springs to mind, pardoned by many a compromised president. We’ve lived with it. Now Trump just done what he’s done so often: daemonically take everything way too far, turn it all into a sick joke, blow everything up, and leave our heads spinning in confusion over how our systems are normally supposed to work.
They say he might even have performed the magic trick of a “self-pardon”. . .
For the first time ever on this Continent, a Compromised President and a Pardoned Sleazebag actually combined in one grotesque and barely human form . . . !
More sober discussions, at the Times, for one, have sought context in the first presidential pardons, which were issued, not surprisingly, by the first president. The Times recently gave readers the impression that George Washington’s use of the pardon was mainly an act of kindness. It’s true that because Washington didn’t use the power to get his friends and family off the hook, the moral contrast between the first Pardoner-in-Chief and the most recent one, as well as a lot of others in between, can look pretty stark.
But a more realistic look at Washington’s use of the presidential pardon points to some difficult issues inherent in the power of the presidency itself. The first pardon occurred in response to the first national crisis. The issues it raised then seem strangely relevant to the national crisis we’re in now. [UPDATE: And even more so after 1/6/21.]
Even before the first presidency, there was disagreement about the pardon power. At the Constitutional Convention, Alexander Hamilton proposed equipping the new national executive with a power to pardon. As he explained later, in Federalist 74, the power would give a president a bargaining chip in any negotiation with insurrectionists: step off now and walk away pardoned, the president might say, or keep going and prepare to die.
It made sense in theory. As we’ll see, there were ironic twists in practice, involving Hamilton himself. [UPDATE: And ironic twists involving Trump, given events of 1/6.]
The power to pardon was also in keeping with Hamilton’s belief, expressed at great length at the convention, that the president should function in many respects like a monarch. (Trump seems to agree—but Hamilton didn’t mean a deranged monarch.) Kings had long reserved a power to pardon, and that power was sometimes delegated to colonial governors; today, our state governors retain some pardon powers.
The monarchical aspect of the pardon bothered people at the time. At the convention, George Mason of Virginia argued that the power to pardon gave the president not just a way to do personal favors for bad cronies but also an avenue for committing corruption, even treason. The president might be tempted to actively encourage traitors, because he could just go ahead and pardon them if they got caught. That objection was voted down. Mason refused to sign the Constitution and led opposition to ratification. Now, thanks to Trump, Giuliani, and others—thanks as well to our failures to improve our systems—[UPDATE: and more than anything else, thanks to the insurrectionists of 1/6], we face the very situation the great antifederalist worried about.
As ratified, the Constitution didn’t go into a lot of messy detail defining the nature of the presidential pardon; it just said that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” As with so many other things, it was the first exercise of the power, by Washington, that began defining its nature. The situation in which he did so was far more fraught than the Times piece and other calming overviews have suggested.
In the early 1790’s, there was an uprising, just as Hamilton had expected. It occurred in western Pennsylvania. That meant the president’s personal business interests were involved.
By profession Washington was a real-estate developer (like Trump—only successful!). His rise to greatness was driven by an intensely focused career of financial speculation in what was then called western land: vast reaches of fertile forest across the Appalachian chain, unseen by many British colonists until young Washington got out there himself. Especially important was the region called the Forks of the Ohio, in western Pennsylvania, where the Allegheny and the Monongahela join to form the great river into the farther West. Before a United States even existed to be president of, Washington owned thousands of acres around the Forks, and even downstream along the Ohio, his holdings ripening for markup, sale, and settlement. The payoff was potentially huge.
“Holdings” and “potentially” are the tricky terms. Washington’s claims were in many cases illegal. The land itself was reserved, under British law, for multiple indigenous nations, who in any event held and inhabited it. Undaunted, Washington dodged law, treaties, and rules for purchase and kept making sketchy claims, leveraging his connections with British governors of Virginia, the British Army, and the Virginia militia—he was for a time its commander—and ripping off not only some of his former footsoldiers and but also his upscale partners along the way. He remained confident that things would work out for him, one way or another.
He was right. His focus on gain was so intense that, as British government grew increasingly committed to stifling fervid land-speculation by elite American investors, Washington grew increasingly committed to American independence. He, Patrick Henry, the Lees, and a lot of other Virginia speculators—Pennsylvanians and others, too—saw their real-estate investment portfolios about to be wiped out by new measures of Parliament. Equating their sacred liberties with their freedom to seek out and monopolize new lands for investment and gain, they viewed restrictions as both robbery and tyranny. That view’s deep basis in English law and tradition was worked up in some of the key writings of Thomas Jefferson, ultimately including the Declaration of Independence (the view is involved in what “pursuit of happiness” means).
Victory in the War of Independence de facto validated Washington’s claims to vast western acreages. With the whole West ceded by Britain to the U.S., all the way to the Mississippi, and underlying sovereignty granted by the states to the federal government, the big plan now with was to have it all that land surveyed, divided in plots, and sold off to big, government-connected entities for orderly development. That was to be the payoff, so Washington had a strong personal interest, and ultimately a strong presidential interest, in getting the Forks of the Ohio and the farther West under control. Critical both to the expansive future of the nation and to the expansive future of the investing class were subduing the western indigenous people, still at war with the United States. Just as critiical was pacifying western white settlers, often insubordinate, sometimes outright squatters.
I know it’s offbeat to look at Washington this way—maybe downbeat too. But I think looking at him from a business perspective is crucial to understanding his life and role and the context in which he issued the first presidential pardons. It’s not really controversial, in serious scholarship, to note that Washington’s business interests and governing interests were combined. Moves that shock us when Trump makes them, because they break modern norms, didn’t shock Washington’s elite contemporaries, because they didn’t break the 18th Century norms observed by people of their type. Washington spent a lot of time obsessively doing personal business from the President’s House in Philadelphia. The product that he shipped from Mount Vernon at scale was subject to deals with foreign entities, as were his efforts at western-land sales. I’ll make a bald statement that flies in the face of a lot of civic fantasy: the ethics of separating personal and governing interests have drastically improved, not declined, since the founding generation.
Starting in 1791, however, some Americans did object. Ordinary people living around the Forks, largely cut off from and neglected by the seaboard powers, resisted Hamilton’s regressive federal taxation, with proceeds earmarked for the investing class, hitting the western poor selectively hard. They also objected to monopolies, formed by people like Washington and his friends and encouraged by federal policy, for sewing up all land and business in the region. The uprising in western Pennsylvania was an attack on the anti-democratic linkage of private and public dominance by eastern elites.
In those events, which came to be known as the Whiskey Rebellion, Hamilton got his chance to see how the pardon power might work as a bargaining chip during an insurrection.
It worked deviously. The administration’s goal in responding to the Whiskey Rebellion was to punish the entire U.S. citizenry of western Pennsylvania, rebel and otherwise, with a massive military crackdown. Washington and Hamilton needed time to build up that force, so they sent negotiators west to offer the people of the region a deal. They called it an amnesty: if enough people went to the polls to sign a loyalty oath, the military expedition would be called off; if not enough people signed, and the military did have to come, anybody who had signed the oath, and wasn’t on a list of reputed rebel leaders, would be protected from arrest. Terrified by the prospect of a violent crackdown by federal troops, the people signed in droves.
But the negotiations had only been a time-buying move. A huge military force had been readied; now it moved west, under Washington’s command. Because of a recent back injury, he did photo-ops on horseback but rode in a coach most of the time; then he turned around, at Bedford, Pennsylvania, and went back to Philadelphia, leaving Hamilton and Governor Henry Lee of Virginia, commanding about 12,000 troops—more than had beaten the British at the Battle of Yorktown—to descend from the mountains into the Forks region and carry out a systematic suppression of unindicted American citizens.
Everything people feared might happen in U.S. cities, in the summer of 2020, when Trump pretended he was going to send federal troops against protestors, did happen in the U.S. hinterland, in the late fall of 1794, under Washington’s aegis. It’s true that some of the region’s inhabitants had attacked federal officers. Others had shot up fellow citizens’ whiskey stills and otherwise intimidated those whose commitment to rebellion seemed weak. Many had only assembled to protest and make speeches; some had only attended meetings and signed petitions; some had only witnessed such activities; some had done none of the above. Most of the outright rebels were long gone by now anyway.
None of those distinctions mattered to the federal operation on the ground. What also didn’t matter, it turned out, was having signed the amnesty. Mounted dragoons led by upscale, geared-up officers from the eastern cities carried out mass arrests of farmers, artisans, and landless laborers throughout the region, indiscriminately dragging men from their beds into the snow, shouting at the angry wives and crying children that the men were to be hanged, hustling the prisoners off to holding pens. There were indefinite detentions without charge, sometimes in deliberately unbearable conditions. Washington and Hamilton privately agreed, by letter, that some of the men would make useful examples, despite an absence of evidence. The civil legal authority—a tame federal judge had been brought along—was subordinated to the military authority on Washington's explicit orders. That was martial law—what Trump is has so far only been able to dream about.
So the Constitution, and especially the protections for rights listed in the first ten amendments, turned out—right away—to be anything but self-executing. Many prisoners were let go in the end, having been memorably chastised. The lesson to the whole people of the region, regarding who was in charge in the West, was as clear as a bell. The few men actually charged, none of them leaders of the rebellion, were marched over the mountains during the winter, to Philadelphia. There they were paraded in the streets before cheering crowds and thrown in the city jail to await trial.
Two kinds of presidential pardon were then issued.
At the Forks, Lee and Hamilton subjected the whole region to military occupation and martial law, and a new round of loyalty oaths was extracted, house by house, this time by armed men. Once that process was complete, Washington issued a kind of blanket pardon, applicable to all of the people of the Forks. Anyone there who might have committed a federal crime, in the context of the Whiskey Rebellion, was hereby pardoned for it.
That kind of pardon, with its “malice toward none” mood of settlement after a national crisis, set a precedent for the pardon of Confederate soldiers issued by Andrew Johnson, and the pardon of Vietnam-era draft-evaders issued by Jimmy Carter. It also relates, in a stranger way, to Gerald Ford’s individual pardon of Richard Nixon. Because he was president, Nixon hadn’t been indicted for anything. He was pardoned anyway, because there was plenty of evidence on which he might be indicted and convicted as a private citizen, after resigning the office, for actions undertaken while serving the office. Washington’s Forks pardon, too, was not for federal crimes actually prosecuted to a conviction but for federal crimes that might, if investigated, be prosecuted to a conviction. Trump now seems to be looking at giving the individual version of that kind of pardon to friends and family.
Washington exercised the pardon power for convicted individuals, as well, but in a different way. When it came to the bedraggled prisoners marched east, paraded in Philadelphia, and jailed for months, there was virtually no evidence; getting convictions hadn’t been the real purpose of the operation anyway, and juries could find only two men guilty, of treason. They were sentenced to death. The others were released to make their way home to long-neglected farms, shops, trades, and families as best they could.
Washington pardoned the two convicted men, in this case not for crimes they might be charged with, as in the blanket pardon of Forks inhabitants, but for crimes they’d actually been convicted of. That’s more like Trump’s Roger Stone and Joe Arpaio pardons, though Trump had different reasons for issuing them. [UPDATE 12/24: And now a bunch more like that.]
Washington’s intent in issuing both kinds of pardon was to signal, with the establishment of peace in the West, a new state of national unity. The first exercise of the pardon power is therefore often seen as an act of judicious magnanimity, characteristic of our first president. It’s worth noting that Washington had reason to feel pretty good it. After his military action against American citizens, the value of his own western land portfolio went up by 50%. I think that chapter in our founding history raises some difficult questions, not only about Trump’s no doubt outrageous abuses of presidential power but also about the elemental nature of presidential power in general. Trump has blown things so sky high that it’s possible we’ll want to start to look at fixing a few things.
I mean, it’s possible.
Just? Barely? Possible?
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A GENERAL NOTE ON SOURCES. The story I tell above has been so papered over for so long that I know it can seem somewhat outlandish. And yet in these rare and occasional public posts, I don’t do the usual “skim/swim/dive” links to further reading that I do in regular posts for paying subscribers. That’s because if you pay $5/month, I feel you should get not only a guaranteed two issues like this per month, but also a little something extra, in case you‘re the type who enjoys digging deeper than I can go in one post.
But I’ll say now, to everybody, that along with my own rip-snorting pop-history books—the Wild Early Republic trilogy, which I just can’t recommend highly enough!—some deep scholarly works have influenced this newsletter’s explorations of key issues in our early history. Major books influencing today’s post include Taming Democracy, by Terry Bouton; The Power of the Purse, by E. J. Ferguson; Eagle and Sword, by Richard Kohn; George Washington: the Virginia Period, by Bernhard Knollenberg; Washington’s First War, by David A. Clary; The Ohio Company, by Alfred P. James; and The Whiskey Rebellion, by Thomas Slaughter (my narrative book of the same title isn’t an academic study). Relevant papers and articles include “Coercion by Law,“ by Wythe Holt. Unpublished doctoral dissertations include those by Dorothy Fennell, James Patrick McClure, Eugene Harper, and Mark H. Jones. There’s more, of course—but for now, that’s some credit where it’s due.