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But I would go further. Alexander Hamilton suggested in The Federalist Papers , No. 74 , that the presidential pardon power had a twofold purpose: to provide a means of tempering with executive clemency the sometimes harsh results of rigid application of the law and as a tool of statecraft . Hamilton’s example of the second purpose was the use of a well-timed pardon to potential rebels or insurrectionaries to prevent open conflict. Over the succeeding centuries, multiple presidents have employed pardons and amnesties for reasons of state, often after hostilities to reconcile a divided country or region. Notable illustrations include George Washington’s pardons of participants in the Whiskey Rebellion, Madison’s amnesties to deserters in the War of 1812, Andrew Johnson’s pardons of Confederates after the Civil War, and the post-Vietnam War pardons of draft law offenders by Presidents Ford and Carter.

Neither the mercy nor statecraft rationale for pardons can be extended to the issuance of pardons for partisan political ends. Of course, one must tread carefully here because one man’s exercise of mercy or statecraft is another man’s partisan political maneuver. Thomas Jefferson pardoned violators of the Alien and Sedition Acts because he thought that the Act was probably unconstitutional and certainly contrary to American principles. But Jefferson had opposed the Acts in the first place and the pardons pleased his political supporters. Barack Obama pardoned or commuted the sentences of hundreds of drug law violators. For many observers, this was a long-overdue and even insufficient reaction to over-criminalization of narcotics offenses. For Obama’s harsher critics, it could be portrayed as a pander to his electoral coalition.

Likewise, there is plainly some constitutional room for pure whimsicality in presidential judgment about what offenses deserve executive clemency.

Nonetheless, there is no obvious precedent for what appears to be an emerging pattern with Trump — pardons issued almost exclusively (1) to Trump political allies or fellow travelers, (2) to friends or friends of friends, or (3) for the purpose of sending political messages. D’Souza and former Arizona sheriff Joe Arpaio plainly fall in the ally and fellow traveler box. In the second category is the pardon of Scooter Libby whose case seems to have been brought to Trump’s attention by Victoria Toensing, who with her husband and law partner Joe diGenova, is an ardent public defender of Trump and was briefly set to represent him. In the third category is the pardon of Kristian Mark Saucier. Saucier was a sailor convicted of the unauthorized retention of defense information and Trump explicitly compared his treatment to the supposed failure of the Justice Department to prosecute a top Clinton aide. Some have intimated that the Libby pardon also falls in the signaling category inasmuch as Libby was convicted of the kinds of crimes, perjury and obstruction of justice, that figure so heavily in the ongoing Mueller investigation.

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