Myrtle Beach, SC
The instinct behind this question is that mercy requires a known wrong, and that a pardon for something nobody has identified is a different animal wearing the same word. The instinct is right about the second half and wrong about the history, and the history matters because it is the first thing anybody defending these pardons will reach for.
Pre-charge pardons are not new and they are not a loophole somebody discovered recently. Washington offered amnesty to the Whiskey rebels. Lincoln and Johnson pardoned Confederates by the class, most of them never charged with anything. Carter, on his second day in office, pardoned every Vietnam draft evader in the country by proclamation — an entire category of people, for uncharged conduct, most of whom the government could not have named. And the Supreme Court blessed the practice in 1866, holding that the power extends to every offense and may be exercised before legal proceedings are taken, during them, or after judgment.
So the answer to the first half of the question, as a matter of law and history, is yes. That is not a lawyer’s dodge. It is the record.
I work in marketing, which means I spend my time on the gap between what a document says and what an audience hears, and the gap here is where the real objection lives.
Every one of those historical pardons named its subject. Washington’s amnesty was for the western Pennsylvania insurrection. Carter’s proclamation described the offense — violations of the Military Selective Service Act during a defined period — and the class, and the dates. A citizen could read the document and know what had been forgiven and why.
These proclamations do not do that. They name people and they name no conduct. And the statement issued alongside them says the pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing.
That sentence is the tell. Every previous blanket in American history said: here is a wrong, here is a class, here is why we are letting it go. This one says: here is a class, and there was no wrong, and we are letting it go anyway.
You cannot forgive a fact pattern you refuse to describe unless the point is that nobody else gets to describe it either.
So the honest heading is not that preemptive clemency is unprecedented. It is that undescribed clemency is. The Founders’ picture included blankets. It did not include blankets over conduct the government declines to characterize, issued to a list of people the incoming administration had threatened, with a note attached insisting there was nothing underneath.
That is a blanket against future investigation, and it is the second half of the question — but only because of what the documents omit, not because of what they cover.
Novi, MI
A plant can forgive a counted defect. It cannot pre-clear every part that has not been inspected and still call that quality. That was the argument I intended to make and I have to withdraw most of it, because the historical premise underneath it does not hold.
The premise is that the Founders described a power to remit punishment for known offenses, and that pre-charge coverage is a modern distortion. It is not. This has been settled American law since 1866, when the Supreme Court held in Ex parte Garland that the pardon power extends to every offense known to the law and may be exercised before legal proceedings are taken, during their pendency, or after conviction and judgment. That is not dicta and it has never been narrowed. Pre-charge pardons have been part of the instrument for a hundred and fifty-nine years.
And they were part of it before that. Washington offered amnesty to the Whiskey rebels while the insurrection was still being sorted out. Lincoln and Johnson issued amnesty proclamations covering Confederates as a class — hundreds of thousands of people, nearly all of them never charged, most of them never identified by name. Carter pardoned every Vietnam-era draft evader in the country on his second day in office.
I am a quality man and quality men do not get to keep a specification after the drawings prove them wrong. So: preemptive pardons fit the power as it has actually been exercised since the beginning, and anybody in this Forum who argues otherwise will lose the argument to the first person who reads a history book.
Now let me rebuild the objection on ground that holds, because I think it holds well.
Every one of those precedents specified the conduct. Carter’s proclamation identifies the statute — violations of the Military Selective Service Act — and the covered period, August 1964 through March 1973, and the class of persons. Johnson’s amnesty proclamations identify the offense as participation in the rebellion and set out the exceptions by category. The documents are legible. A citizen in 1977 could read Carter’s proclamation and know exactly what had been forgiven, to whom, and for what window of time.
The January twentieth proclamations do none of that. They name individuals and describe no offense. The statement accompanying them says the pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing.
In process terms that is a nonconformance report with the defect field left blank and a note attached saying there was no defect. It is not a record of anything. It cannot be audited, compared to prior cases, or used to establish a standard for the next one. And the family instrument, along with the Hunter pardon in December, reaches back to January 1, 2014 — an eleven-year window, covering conduct nobody has characterized in any document the public can read.
That is the specification failure, and it is the argument that survives the history.
So the answer to the question as posed is: they fit the power as it has always been exercised, and they do not fit the practice, because the practice until now has been to describe what is being forgiven. Remove the description and you are no longer performing an act of mercy with a public record. You are performing an act of preclusion with none.
Preclusion of an unidentified offense over an eleven-year window is functionally a blanket against future investigation, whatever the clause permits. The second half is therefore the right heading, but it has to be argued from the omissions rather than from a claim about the Founders that the Founders themselves would not recognize.
Orange County, CA
Orange County can tell a commuted sentence from a letter that says do not start. What it cannot do, and what nobody making this argument should do, is pretend the letter is a modern invention.
The class-wide, pre-charge pardon is one of the oldest instruments in American practice. Lincoln’s amnesty proclamation of December 1863 offered a full pardon to Confederates who took an oath of allegiance — before any charges, to a class the government could not enumerate. Johnson’s proclamations extended it, eventually covering essentially everyone who had participated in the rebellion. Nobody in this Forum thinks those were illegitimate. Most of us think they were among the more statesmanlike acts in the country’s history.
Carter’s is the closer structural analogue and I would put it front and center precisely because it is the harder one for my side. On January 21, 1977, his second day in office, he issued a proclamation pardoning every person who had violated the Selective Service Act between August 1964 and March 1973. Hundreds of thousands of people. Uncharged. Unnamed. Unknown, in the great majority of cases, to the government granting the pardon.
That is a blanket over uncharged and not fully known conduct, issued by a Democratic president, and the objection to it at the time came almost entirely from the right. If our position is that such a thing cannot fit the pardon power as the Founders described it, we are also saying Carter’s amnesty was illegitimate, and we should either say that out loud or drop the argument.
I work in finance and the discipline I would apply here is comparability. Two instruments in the same category are compared on their terms, not on whether you liked the counterparty.
So compare them. Carter’s proclamation names the statute violated. It names the period. It states the reason — reconciliation after a war that divided the country — and the reason is legible to anyone reading it. The document is four paragraphs long and a citizen can extract from it exactly what was forgiven, for what, and why.
Now the January twentieth instruments. They name individuals. They name no offense, no statute, and no conduct. The accompanying statement says the recipients had been subjected to threats and intimidation, and that the pardons should not be mistaken as an acknowledgment that anyone did anything wrong. The family instrument reaches back to January 1, 2014, as did the Hunter pardon in December, and neither document says what happened in those eleven years that requires forgiving.
That is the distinction that survives comparability review, and it is the only one that does.
Carter forgave a described offense committed by an undescribed class. These proclamations forgive an undescribed offense committed by a described class. Those are inverse structures and only one of them leaves the public able to evaluate the act.
The consequence is what the second half of the question calls a blanket against future investigation, and I think that is fair as far as it goes. But I would state the mechanism precisely, because vagueness is what got these documents criticized in the first place and we should not reproduce it. The mechanism is not that pre-charge clemency forecloses inquiry — Carter’s did too, and nobody minded. The mechanism is that an eleven-year window over unspecified conduct forecloses inquiry into things nobody has identified, including things the grantor may not have known about when he signed.
That is an open-ended indemnity, and no underwriter in this county would write one. The Founders’ picture allowed blankets. It did not contemplate a blanket whose covered peril is left blank.
Bismarck, ND
Mercy for a wrong you can name is one thing. A tarp over a file you will not name is another. That is my position and I want to reach it honestly, which means starting with what is wrong in the way our side has been arguing it.
Pre-charge clemency is not novel and it is not a distortion of the founding design. The Supreme Court settled that in 1866. Washington used it on the Whiskey rebels, Lincoln and Johnson used it on the Confederacy by the class, Carter used it on every draft evader in America. If we argue the Founders never contemplated forgiving uncharged conduct, we lose, and we should not lose an argument we do not need to make.
The objection that holds is about specification, and in compliance work specification is the whole job.
Every one of those precedents states the offense. Carter’s proclamation names the statute and the dates. Johnson’s names participation in the rebellion and lists the exceptions. A person reading the document knows what was forgiven and can compare it to the next case.
These documents state nothing. Full and unconditional, individuals named, conduct not described, and a statement attached saying nobody did anything wrong in the first place.
Now the test I run on every one of these questions. Departing Republican president. Incoming Democrat who has spent two years promising to prosecute named Republicans. On the last morning he pardons his intelligence directors, his outgoing Joint Chiefs chairman, a congressional committee that investigated the other side, and five of his own relatives — full and unconditional, no offense named, eleven-year window on the family.
Would I accept it? I would accept that the peril was real, because it would have been announced in public just as this one was. I would not accept an instrument that refuses to say what it covers, and I would say so in the same words I am using now.
Same answer both directions. That is how I know it is a rule and not a preference.
What a defensible version would have looked like is not complicated. Name the conduct or the category. State the window and justify it. Say what the recipient is alleged to have done and why forgiving it serves the public. Carter managed all three in four paragraphs.
Do that and you have clemency with a record, which citizens can weigh and future presidents can be measured against. Refuse to do it and you have an instrument that operates as a blanket regardless of what the clause permits, because there is no way for anyone outside to distinguish it from one.
The second half is therefore the heading, on the omissions rather than on the history.
Clermont, FL
If a ride has thrown somebody, you can refund the ticket. If you refund tickets for a ride nobody has inspected, you have closed the park to inspectors. That was going to be my argument, and I need to correct the part of it that rests on Hamilton, because I checked and Hamilton says close to the opposite.
Federalist 74 is the standard citation for the pardon power and everybody quotes the line about the dread of punishment and the sense of mercy. The passage people skip is the one immediately after, where Hamilton argues that in seasons of insurrection or rebellion there are critical moments when a well-timed offer of pardon to the insurgents may restore the tranquility of the commonwealth — and that a single man, able to act quickly, is better suited to seize such a moment than a body that must deliberate.
That is an argument for pre-charge, class-wide, politically motivated clemency, made by the person we cite for the proposition that clemency is about individual mercy. He was not describing a pardon after a trial. He was describing a pardon offered to people who had not been caught, to end a crisis, on the President’s own judgment of the moment.
So the first half of this question has a better historical footing than our side has been giving it, and I would rather concede that in February than have somebody produce Federalist 74 in April.
I work with small businesses and the discipline I would apply is the one I give owners writing policy: if you cannot state what the rule covers, you do not have a rule, you have a mood.
Here is what Hamilton’s insurrection pardon and Carter’s draft amnesty have that these proclamations do not. Both describe the trouble. Hamilton’s hypothetical is aimed at a rebellion — a public event, visible to everyone, with a beginning and an end. Carter’s names a statute and a seven-year window. In each case, the country can see the wound the mercy is treating.
The January twentieth instruments describe no wound. They describe recipients. And the accompanying statement insists there was no wound at all, which is a strange thing to say while bandaging.
That is the objection I can defend. Not that clemency must wait for a charge — it never has. Not that a class cannot be covered — classes have been covered since 1863. That an instrument which refuses to identify the conduct it forgives is not performing the function Hamilton described, because his function was public: restore tranquility by publicly settling a known disturbance. A private settlement of an unstated disturbance does not restore anything. It just ends the possibility of anybody finding out what the disturbance was.
Closed gate, not a refund. The second half is the heading, and it is the heading on drafting rather than on doctrine.
Jacksonville, FL
Ports distinguish a waived fine on a cited cargo from a letter saying no inspector may open a container later. I have used that distinction for two years and it needs a repair, because the historical record does not support the version of it I have been running.
The repair is this: American clemency has always included letters of the second kind. Washington offered amnesty to rebels the government had not charged. Lincoln and Johnson issued proclamations covering an entire defeated population, most of whom were never named or indicted. Carter pardoned every Vietnam draft evader in the country in a single document on his second day. And the Supreme Court held in 1866 that the power reaches conduct before any proceeding has been taken.
So the letter has been in the file cabinet since the founding. What has changed is what the letter says.
Every one of those precedents identifies the cargo. Carter’s proclamation names the statute and the covered dates. Johnson’s names the rebellion and lists who is excluded. Somebody reading them knows what is inside the container, even though the container is being sealed rather than opened.
The January twentieth instruments name the containers and not the cargo. And the family document, along with the Hunter pardon in December, sets a covered period beginning January 1, 2014 — an eleven-year window over conduct that appears nowhere in any public document.
That combination is what I would flag on a manifest. Not the sealing. The sealing is old and lawful. The blank description field is what is new.
Here is why it matters operationally rather than as a matter of taste. A described pardon can be evaluated. You can ask whether the conduct was serious, whether the class was drawn fairly, whether the reason given holds up, and whether the next president who wants to do something similar is asking for more or less. That evaluation is the only accountability the clause leaves, because courts will not review the act itself.
An undescribed pardon cannot be evaluated at all. There is no way to know whether it covered a technicality, a serious offense, or nothing whatsoever, and the grantor has structured it so that no future finding can settle the question either. The record is not merely absent. It has been made permanently unobtainable.
That is a blanket against future investigation in the operational sense even if it is not one in the doctrinal sense, and I would state it that way rather than claim the clause forbids what it plainly permits.
I want to give the other side its strongest card before I close, because our arguments have been getting sloppy on this file and sloppy arguments get discarded whole.
The card is this. Some of these recipients could not have their conduct described, because the whole premise of the pardon was that no one had identified a crime — the threat was that a hostile administration would go looking for one. You cannot name the offense when the point is that no offense has been alleged, only announced. Fauci’s own exposure is the closest thing to an exception: there were referrals to the Justice Department over what he told Congress about gain-of-function funding, and that is a specific, nameable, factually answerable allegation with a live limitations period. It is also the one thing in the entire package a proclamation could have addressed by name and did not.
So the honest finding is that the instrument was drafted to be unfalsifiable, and that at least one item inside it could have been drafted otherwise.
Post the manifest. That has been the request in every one of these files and it is the request here. The clause allows the seal. It does not require the blank.
Las Vegas, NV
You can tear up a marker on a hand that has been played. Nobody in this building would tear up every marker a player might ever run, on a night that has not started, and then put out a statement saying the player never owed anything.
That last part is the piece I want to talk about, because it is the strangest thing in these documents and almost nobody is discussing it.
The pardons are ordinary in one respect: pre-charge clemency has been lawful since 1866 and used since Washington. Carter pardoned every draft evader in America in a single proclamation. Lincoln and Johnson pardoned the Confederacy by the class. Anybody arguing the Founders would not recognize a blanket has not read the blankets they signed.
What is not ordinary is the disclaimer. The statement issued with these proclamations says the pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt.
In my business we would call that a comp with a note attached saying the guest never gambled. It is meant to solve a real problem — there is a Supreme Court case from 1915 holding that accepting a pardon carries an imputation of guilt, and the drafters clearly did not want these recipients called confessed criminals. But solving it that way tells you exactly what the instrument is for.
Mercy assumes a wrong and forgives it. This forgives and denies the wrong in the same breath, which means the operative function is not forgiveness. It is immunity, and immunity from investigation is not what the clause was described as doing, whatever it permits.
So my answer is the second half, arrived at from the paperwork rather than from history. The house has always been able to tear up markers before the hand is called. What it has never done is tear one up while insisting no bet was ever placed, over an eleven-year period, for a list of players the incoming pit boss had named out loud.
Blanket, not mercy. Mercy names the hand.
Knoxville, TN
If you cannot name the wrong, you are not pardoning. You are wrapping. That is my conclusion and I want to reach it by the right road, because the road our side has been using does not go through.
The road that does not go through is history. Pre-charge and class-wide clemency is not a modern deviation. Washington used it on the Whiskey rebels. Lincoln and Johnson used it on an entire defeated population. Carter used it on every draft evader in the country. The Supreme Court blessed it in 1866 in terms that could not be plainer — the power may be exercised before proceedings are taken, during them, or after judgment. In public works terms, this is not an unpermitted structure. It is a standard detail that has been in the code book for a century and a half.
The road that does go through is specification, and it is a better road anyway.
Every one of those precedents is a legible document. Carter’s proclamation identifies the statute violated and the period covered, August 1964 to March 1973. Johnson’s identifies the offense and enumerates the exceptions. An engineer could read either one and reconstruct exactly what was being forgiven and to whom.
The January twentieth instruments identify no conduct at all, and the family document runs back to January 1, 2014. That is an eleven-year covered period with a blank description field, which is the same as a permit with the scope of work left empty. No inspector could sign that, and the reason has nothing to do with whether the work is allowed.
So the design failure is a drafting failure, and drafting failures are fixable without touching the clause.
The fix is three lines that any future proclamation could carry. State the conduct or the category of conduct being pardoned. State the period and give a reason for its length. State the ground — mercy, disparity, reconciliation, or protection against a threatened prosecution — and say which one it is. Carter did all three in four paragraphs and nobody has ever accused that document of being obscure.
That would leave the power exactly as broad as it is and make the exercise of it something a citizen can evaluate. Evaluation is the only check available here, since courts will not review the act, and an instrument drafted to defeat evaluation has removed the last one.
Whether that makes these particular pardons a blanket against future investigation is, I think, the wrong way to put the question. They function as one. Whether they were meant as one cannot be determined from the documents, and that is precisely the objection: the documents were written so it cannot be determined.
Wrapping, not clemency. The second half, on the drafting.
Sheffield, Jamaica
The American discussion of this question has been conducted as though the only available comparisons were American. That is a habit of large countries and it costs them, because the question of whether a departing government may forgive its own people for unspecified conduct has been litigated to a conclusion in this hemisphere, and the conclusion runs against the practice.
I do political economy and my working life has been spent on institutional capacity in small states, which is a polite way of saying I study what governments do when they are leaving. So let me set out what the region has learned, because it is a great deal.
The blanket, pre-charge, self-protective amnesty is not an obscure Latin American curiosity. It was, for roughly two decades, the standard exit instrument of the hemisphere. Chile’s Decree Law 2191 of 1978, covering the five years of the worst repression, issued by the government that had conducted it. Brazil’s amnesty law of 1979. Argentina’s Ley de Pacificación Nacional of September 1983, signed by the outgoing junta weeks before the transfer of power. Uruguay’s Ley de Caducidad of 1986. Peru’s amnesty laws of 1995, passed under Fujimori.
Every one of those instruments has the two features this Forum has identified in the January 20 package: it covered conduct that had not been charged, and it was issued by people with an interest in what would not be found.
So on the narrow question the Forum is asking — do preemptive blankets over undescribed conduct fit within the tradition of clemency — the answer is that they fit within a tradition, and it is not the tradition Hamilton was describing. It is the tradition of the departing government.
Now the part that ought to interest Americans and does not appear anywhere in this file.
The region did not simply endure those instruments. It developed a limiting principle against them, and it did so in a forum the United States helped design.
In 2001, in Barrios Altos v. Peru, the Inter-American Court of Human Rights held that amnesty provisions intended to prevent the investigation and punishment of those responsible for grave violations are inadmissible and lack legal effect. Not voidable. Without effect from the outset. The Court applied the same reasoning to Chile’s 1978 decree in 2006, to Brazil’s 1979 law in 2010, and to Uruguay’s Ley de Caducidad in 2011 — the last of which is the most striking, because that Uruguayan law had been submitted to popular referendum twice and upheld both times. The Court held it lacked effect notwithstanding that the electorate had ratified it.
There is a rule in this hemisphere, and the rule is that a self-protective amnesty over unidentified conduct is not law.
The United States is not bound by it. Washington signed the American Convention on Human Rights in 1977 and never ratified it, and has never accepted the Court’s contentious jurisdiction. That is a sovereign choice and I am not disputing it. I am observing that the standard the region applies to departing governments was developed with substantial American encouragement, at conferences funded in part by American money, and that the United States exempted itself from it and has now produced an instrument that would fail it.
I want to be careful about the limits of the comparison, because sloppy analogies are how arguments like mine get dismissed. The Latin American amnesties covered disappearances, torture, and killings. Nothing in the January 20 package is remotely of that character, and anybody drawing that equivalence is being unserious. The doctrinal principle from those cases is narrow: it applies to grave violations of the Convention, and it would not reach a records offence or an unstated tax matter.
The structural observation survives the difference, and it is this. Every one of those instruments was defended at the time in exactly the terms Americans are using now — that the incoming authorities intended vengeance, that the conduct was official rather than criminal, that the country needed to move on. Those arguments were sincere in some cases and cynical in others, and the region eventually concluded that it could not tell the difference from the outside and would therefore treat the instrument itself as the problem.
That is what a limiting principle is for. It does not require you to know the motive. It requires the instrument to be legible enough that motive does not have to be guessed.
Argentina supplies the one hopeful entry. The junta’s self-amnesty of September 1983 was annulled by the incoming Congress in December, within weeks, by ordinary legislation. A departing government’s blanket was simply undone by the next legislature.
The United States has no such mechanism, and after eight weeks of this discussion it is worth asking why the country that spent thirty years teaching the region about accountability built the one system in the hemisphere where a departing executive’s blanket cannot be examined by anybody.
