William Howard Taft on the Presidential pardoning power in the United States
Three years after he left the White House, William Howard Taft published his thoughts on the Presidential pardoning power.
William Howard Taft served as the 27th President of the United States between 1909 and 1913. He had served as Secretary of War in the cabinet of Theodore Roosevelt. When Roosevelt reluctantly decided to abide by the convention that Presidents should not seek a third term, Taft became his successor. His relationship with his predecessor became problematic: his initial status as Roosevelt's heir implied that he was merely a puppet, but his effectiveness was not increased when his mentor became his fiercest critic. In the Presidential election of 1912, Roosevelt ran again as a third-party candidate, splitting the Republican vote so effectively that Taft carried only two States. He retreated to a professorship at Yale where he wrote Our Chief Magistrate and his Powers, which was both a reflection on the office and a defence of his role as its incumbent. A notable jurist, he became Chief Justice of the Supreme Court in 1921. Taft's discussion of the Presidential power of pardon is reproduced here in connection with a larger study on martinalia of the origins of the pardoning power in the Constitution.[1] His comments, both thoughtful and tongue-in-cheek, may have some resonance in twenty-first century considerations of the pardoning power.[2]
(It should be pointed out that Taft was heavy-handed in his use of paragraphs!)
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"The last power of the President which I shall consider is the power of pardon. This is a wide power, and enables the President to pardon any one guilty of an offense against the United States before indictment, after indictment and before conviction, or after conviction. He need not name the persons to be pardoned if he pardons a class and makes provision by which the persons affected shall establish their membership in that class. The pardon under such circumstances is called an amnesty. He is expressly given power to grant reprieves, which means only a suspension of the execution of a sentence for one purpose or another. The Supreme Court said in one case that a pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and when the pardon is full, it relieves the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he never had committed the offense. This is rather a strong statement as some later cases show. It is difficult to clothe Omnipotence with such a power.
Congress may not restrict the President in the exercise of his power of pardon. There was a good deal of conflict between the Executive and Congress in respect to amnesty proclamations issued by President Johnson. Congress was loath to allow the full constitutional effect which such pardons required in respect to the status of those who had been guilty of treason against the government and who were restored to the enjoyment of their full civil rights, as if the treason had never been committed.[3] In the case of Mr Garland, who was afterwards a Senator from Arkansas, and Attorney General of the United States, the Supreme Court had to examine the validity of a statute, which required that every attorney practising law in the Federal court must take an oath that he never had borne arms against the United States. This act practically excluded all lawyers who had served the Confederacy from the pursuit of their profession. The Court held the act invalid because it was in effect a bill of attainder, and also because it defeated the President's amnesty of which Mr Garland had taken advantage.[4] A very nice line of distinction is presented by another decision of the Supreme Court, in which the validity of a law of the state of New York was in question. The law prevented men who had been convicted of felonies from receiving certificates permitting them to practise medicine. In that case, the Court held that the question of fitness was one of fact and that the legislature had the right to make rules of eligibility to protect the public against immorality in the practice of the profession, and that it could not say that such a rule of ineligibility was not reasonable in preserving a proper moral standard in physicians. It could not regard it as additional punishment.[5]
There is a question whether the President's power of pardons extends to the case of one sentenced to imprisonment for contempt by a Federal Court.[6] It is objected that this power of contempt is used by the court to enforce its judgments, and that if the President could intervene and paralyze the instrument in the hands of the Court to enforce its judgment, he would not be pardoning a crime but would be obstructing the Court in its administration of justice. I think it is possible to smooth out this difficulty by pointing out a distinction between the two ways in which a court exercises its power of contempt. Where a court is seeking to enforce a decree or a judgment against a contumacious party and puts him in prison for the purpose of compelling him to comply with the judgment or decree, then I do not think the President could pardon a man or relieve him from the effect of such an order because he would really be obstructing the cause of justice. But where the court is merely vindicating its own authority by punishing a man for a past contempt, and where an imprisonment is not a continuing duress for the purpose of compelling obedience, it seems to me that the punishment inflicted is for an offense against the United States, to wit, a defiance of its judicial authority, and therefore that it does come within the range of the power of pardon by the President.
The duty involved in the pardoning power is a most difficult one to perform, because it is so completely within the discretion of the Executive and is lacking so in rules or limitations of its exercise. The only rule he can follow is that he shall not exercise it against the public interest.[7] The guilt of the man with whose case he is dealing is usually admitted, and even if it is not, the judgment of the court settles that fact in all but few cases. The question which the President has to decide is whether under peculiar circumstances of hardship he can exercise clemency without destroying the useful effect of punishment in deterring others from committing crimes. The frequent result of human punishment is that those near to the criminal or dependent upon him suffer more than he does, and their pitiable condition often furnishes a plea for mitigation of the penalty to the offender. Those who plead for pardon are generally entirely blind to the right of society to be protected from criminals and to have those of criminal tendencies deterred from yielding to them by fear of punishment. If the fear of punishment is lessened by Executive clemency to those convicted, the benefit of punishment will be largely lost. It is a case where organized emotion and sentiment are likely to mislead, to the public detriment. It seems to me that the people of New York and of the country generally are in danger of being led by an unwise sentiment into a treatment of convicted criminals that will neither impart to the criminals the proper lesson from punishment, nor will keep before those likely to become criminals the fear of the law as a deterrent. It is of course wise and humane that state prisons and penitentiaries should be made as healthful as possible for the confinement of those sentenced to spend a term within their walls, and it is wise to provide healthful labor and primary and industrial education. The impulse of many prison reformers, however, to treat the prisoners as victims and to make society the scapegoat for all their sins and vicious propensities and crimes is a wrong one, which if yielded to will certainly lead to bad results and ultimately to a retracing of steps toward greater rigidity and severity. The theory that by treating criminals as if they had no criminal tendencies you can eliminate such tendencies is one that may work in some cases, but the exceptions will be so many as to make the policy ultimately ridiculous, and, worse than ridiculous, most harmful. A man who violates the law in such a way as to call for a sentence and imprisonment is punished for his violation, and he ought to be punished. He need not be, and ought not to be, subjected to cruel or unwholesome surroundings, but he should be made to feel that he is suffering punishment for that which he has done. He may be given an opportunity to reform, and, so far as it is possible, be encouraged to change his ways, but if he is to be coddled and to receive the impression that he is a victim instead of being a criminal, the enforcement of our criminal law will be a failure.
The President has to keep these distinctions in mind in the exercise of Executive clemency, and must stifle his emotions of pity for the family and dependents of the criminal in the consideration of the character of the offense and the necessity for having it plainly understood that such an offender is not to escape with immunity.
There has been a custom in the Presidential office of pardoning men who are supposed to be near their death to enable them to go home and die with their families. The difficulty in such cases is in being certain that death is near. I had two notable cases in which I was assured by the prison authorities that death was imminent, and that if they were to be released at all, to die, they ought to be released at once. I instituted as thorough an investigation as I could through the army and navy surgeons in the employ of the government and reached the conclusion from the evidence submitted that death was certain. I pardoned them both. One man died and kept his contract. The other recovered at once, and seems to be as healthy and active as any one I know. I had a suspicion of fraud in the latter case and instituted an investigation to see whether I had been deceived by the friends of the prisoner or the prisoner himself. I was not able to find the evidence of such fraud.
It has been suggested to me that if the man had been guilty of fraud in inducing me to pardon him, I might have set aside the pardon as void and directed the arrest of the former convict. I do not think that in such a case a pardon could be set aside. I do not think either I or a court would have had the authority to issue a warrant for the arrest of the man and to restore him to prison. It seems to me it would be like a case of a man acquitted by a jury which was bribed by him. He might be thereafter convicted of bribery, but he could not be convicted of the crime of which the verdict of the jury acquitted him.
There are curious notions about pardons in the minds of some people. When Mr Knox was Attorney-General, a Congressman came to him and said that he would like to have a man pardoned who had been sent to the penitentiary for robbing a post office.[8] He said that the convict had been a great supporter of his and he would like to get him out. Mr Knox asked him what the ground for pardon was, and he said he was a good fellow and had been his friend. Knox said that was no reason. 'But,' said the Congressman, 'I understand that each Congressman has a right to two pardons during his term and I want this to be one of mine.'"
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A few pages further on, Taft made a brief further allusion to an administrative aspect of the pardoning power.[9]
"Executive power is sometimes created by custom, and so strong is the influence of custom that it seems almost to amend the Constitution.... [One example] is that of the remission of penalties incurred by steamers violating the navigation laws. Since the beginning of the government, the Secretary of the Treasury has exercised the power to remit these penalties in proper cases. The pardoning power is given by the Constitution to the President, yet the practice of one hundred years was recognized by the Supreme Court and it held to be valid."
ENDNOTES
[1] Ged Martin, "Discussion of the Presidential power of pardon in the United States, 1787-88": https://www.gedmartin.net/martinalia-mainmenu-3/436-presidential-pardoning-power-1787-88.
[2] W. H. Taft, Our Chief Magistrate and his Powers (New York, 1916), 118-124.
[3] The conflict between Congress and President Andrew Johnson (in office 1865-9) over Reconstruction is a well-known story in American history. It may be put in a broader context by noting the comment of Marcus Cunliffe: "active Presidents make things difficult for their successors. In the to-fro contest between the executive and the legislative branches, Congress strives to recover territory that it has lost. A regular alternation may be discerned." Lincoln was forced to stretch the powers of his office to (and beyond) their limits to save the Union. By Cunliffe's argument, any President who followed would have faced a backlash from the Hill. M. Cunliffe, American Presidents and the Presidency (London, 19672 ed., cf 1st ed. 1969), 156.
[4] Augustus H. Garland challenged the legality of the 'Ironclad Oath', designed to bar from legal practice anyone who had actively supported the Confederacy in the Civil War. The judgment in Ex parte Garland (1866) is given in https://supreme.justia.com/cases/federal/us/71/333/. Augustus Hill Garland was Governor of Arkansas 1874-6, Senator 1876-85 and Attorney General of the United States 1885-89 in President Grover Cleveland's first term.
[5] I have not traced this case.
[6] President Trump's first use of the pardon power, in 2017, overturned a conviction for contempt of court by a former Arizona sheriff. The implications of the case are discussed by Z.J. Broughton in Western New England Law Review, xli (2019): https://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1815&context=lawreview.
[7] The weight of responsibility on the President in the exercise of the power of pardon was discussed by Alexander Hamilton in The Federalist, LXXIV.
[8] Philander C. Knox of Pennsylvania was Attorney General of the United States 1901-4, and Secretary of State under President Taft, 1909-13.
[9] Taft, Our Chief Magistrate and his Powers, 135.