Tuesday marked the 150th anniversary of President Andrew Johnson’s Christmas Amnesty of 1868. Acting under Article II of the Constitution (which empowers the president “to grant reprieves and pardons for offenses against the United States”), Johnson granted amnesty and a full pardon to all ex-Confederates. Here is the complete text of his Christmas Amnesty:
A Proclamation
Whereas the President of the United States has heretofore set forth several proclamations offering amnesty and pardon to persons who had been or were concerned in the late rebellion against the lawful authority of the Government of the United States, which proclamations were severally issued on the 8th day of December, 1863, on the 26th day of March, 1864, on the 29th day of May, 1865, on the 7th day of September, 1867, and on the 4th day of July, in the present year; and
Whereas the authority of the Federal Government having been reestablished in all the States and Territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions as at the dates of said several proclamations were deemed necessary and proper may now be wisely and justly relinquished, and that an universal amnesty and pardon for participation in said rebellion extended to all who have borne any part therein will tend to secure permanent peace, order, and prosperity throughout the land, and to renew and fully restore confidence and fraternal feeling among the whole people, and their respect for and attachment to the National Government, designed by its patriotic founders for the general good:
Now, therefore, be it known that I, Andrew Johnson President of the United States, by virtue of the power and authority in me vested by the Constitution and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion a full pardon and amnesty for the offense of treason against the United States or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.
In testimony whereof I have signed these presents with my hand and have caused the seal of the United States to be hereunto affixed.
Done at the city of Washington, the 25th day of December, A. D. 1868, and of the Independence of the United States of America the ninety-third.
ANDREW JOHNSON
The Christmas Amnesty is a historical precedent worth remembering as we await the completion of Special Counsel Robert Mueller’s Russia investigation. Two aspects of Johnson’s use of his pardon power stand out as particularly relevant.
Mass Pardons
First, the Christmas Amnesty demonstrates that the president has the authority to issue mass pardons covering an entire category of people. Johnson’s universal pardon applied to all ex-Confederates, including former Confederate President Jefferson Davis and former Confederate General Robert E. Lee as well as ordinary soldiers and pro-Confederate civilians. The general amnesty represented the culmination of a series of pardons that Johnson granted to ex-Confederates during his presidency.
The scale of the Johnson pardons was immense. About one million soldiers served in the Confederate armies and millions of southerners (as well as some northerners) provided material support to the Confederacy. Thus, through his use of the pardon power, Johnson granted amnesty to millions of people for their participation—direct and indirect—in rebellion against the United States government.
Jimmy Carter used the same approach in 1977. On his first full day in office, President Carter pardoned the hundreds of thousands of young men who evaded the draft during the Vietnam War.
The Johnson and Carter precedents make clear that Trump has the authority to issue mass pardons to everyone involved in any federal crimes arising from the Russian intervention in the 2016 election. The only unanswered legal question is whether the president may issue a self-pardon. Scholars have offered a range of opinions on the issue, including Eric Muller, Richard Epstein, Michael McConnell, Andrew Kent, Ethan Leib, and Jed Shugerman, but no consensus has yet emerged.
Even if Trump cannot pardon himself, there is no doubt that his pardon power gives him the ability to grant amnesty to everyone else involved. Nor does he need to individually name the recipients of the pardon. If Andrew Johnson could issue a mass pardon of the millions of secessionists during the Civil War, then certainly Trump has the constitutional authority to issue a mass pardon of everyone who conspired with Russia during the 2016 election.
Preemptive Pardons
Second, the Christmas Amnesty removed any doubt that the president may issue preemptive pardons. As Cynthia Nicoletti points out in her outstanding new book, Secession on Trial: The Treason Prosecution of Jefferson Davis, Johnson’s universal amnesty prevented prosecutors from going forward with the Jefferson Davis treason trial. It also prevented the Justice Department from charging any other ex-Confederates with treason.
The same preemptive effect applied in September 1974 when Gerald Ford pardoned Richard Nixon for his involvement in Watergate. Here is the full text of the Nixon pardon:
A Proclamation
Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974.
Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment.
As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.
It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.
Now, Therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.
In Witness Whereof, I have hereunto set my hand this eighth day of September, in the year of our Lord nineteen hundred and seventy-four, and of the Independence of the United States of America the one hundred and ninety-ninth.
GERALD R. FORD
Before the pardon, the Watergate Special Prosecution Force had prepared to bring criminal charges against the former president. In a confidential memo to President Ford, the prosecutors argued:
“In our view, there is clear evidence that Richard M. Nixon participated in a conspiracy to obstruct justice by concealing the identity of those responsible for the Watergate break-in and other criminal offenses. . . . There is a presumption (which in the past we have operated upon) that Richard M. Nixon, like every citizen, is subject to the rule of law. Accordingly, one begins with the premise that if there is sufficient evidence, Mr. Nixon should be indicted and prosecuted. The question then becomes whether the presumption for proceeding is outweighed by the factors mandating against indictment and prosecution.”
But Ford’s pardon preempted federal prosecutors, which meant they never got the chance to build a criminal case against Richard Nixon.
Thus, notwithstanding speculation over the possibility that Trump may ultimately fire Mueller, the pardon power remains an extraordinarily potent weapon in the president’s arsenal. Historical precedent clearly shows that Trump possesses the constitutional authority to preemptively issue a mass pardon even for individuals not yet charged by the Special Counsel’s office.
SCOTUS on Presidential Pardons
Most important of all, the Supreme Court has taken an extremely broad view of the pardon power. In the 1871 case of United States v. Klein, the Court upheld Johnson’s use of his pardon power:
“It is the intention of the Constitution that each of the great coordinate departments of the government -- the Legislative, the Executive, and the Judicial -- shall be, in its sphere, independent of the others. To the executive alone is intrusted the power of pardon; and it is granted without limit. Pardon includes amnesty. It blots out the offence pardoned, and removes all its penal consequences.” (Emphasis added.)
Even the dissenting justices in Klein agreed with the majority view’s of the scope of the pardon power. Congress, Justice Miller wrote, may not “prescribe to the judiciary the effect to be given to an act of pardon or amnesty by the President. This power of pardon is confided to the President by the Constitution, and whatever may be its extent or its limits, the legislative branch of the government cannot impair its force or effect in a judicial proceeding in a constitutional court.”
Similarly in the 1866 case of Ex Parte Garland, the Supreme Court held:
“A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases 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 had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.” (Emphasis added.)
Unless the current Supreme Court is willing to overturn long-standing precedent, the case law indicates the president’s power to pardon federal crimes is virtually unlimited.
Trump Pardons?
Donald Trump has boasted of the pardon power from his presidency’s earliest days. For example, in a 2017 Tweet he declared:
When asked in a recent interview whether he would pardon his former campaign chairman Paul Manafort, Trump revealed: “I wouldn’t take it off the table.” The president has also openly pondered the idea of a self-pardon. In a Tweet a few months ago, Trump announced:
We have not heard the end of this subject. As the Mueller investigation reaches its climax, the Christmas Amnesty of 1868 seems likely to become ever more relevant in the weeks and months ahead.
I am no fan of our Dear Leader. However, I don't believe he had specific criminal intent. He is guilty of being a schmuck how took advice from a putz lawyer. Nixon knew about the burglary at the Watergate and covered it up with hush money, etc. Clinton lied under Oath during a Deposition. Both very clear crimes with specific intent. Trump on the other hand got excited when told that the Russians had dirt on Hillary. Where is the crime to dig up dirt on adversaries. Harold Washington said, "Politics ain't beanball." Or, when he paid off Stormy Daniels to keep her mouth shut. Looking at it from a businessman's perspective, it was just a nuisance settlement. It was a business decision like the thousands he has handled before. It's no different when a small store owner's insurance company settles with a customer that tripped on the door mat and sought 3 years of chiro.
Posted by: The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated | December 28, 2018 at 04:09 PM
"Before the pardon, the Watergate Special Prosecution Force had prepared to bring criminal charges against the former president. In a confidential memo to President Ford, the prosecutors argued ,,,"
And, then, Ford pardons.
Oh, my. How that eminent legal scholar, Rachel Maddow, and her cadre of hateful partisans would cry obstruction of justice! After all, a pardon can't be used by Trump for the purpose of pardoning someone!
You left out the GHWB pardons, which many argued were intended to absolve himself. Perhaps that is because present day Democrats lionized GHWB so slavishly -- likely to prove they are not vicious partisans, but only, of course, proving that they are not only vicious partisans, but unprincipled, opportunistic hypocrites. See, e.g., Clinton impeachment defense.
The most risible tactic of late is to speculate that T will fire someone, and then spend days in hysterical outrage about the hypothetical prospect.
Posted by: anon | December 28, 2018 at 07:27 PM
K-T law offices forgets the specific statutes prohibiting foreigners from contributing to U.S. political campaigns. 52 U.S.C. § 30121(a)(1). Of course, aiding and abetting in these violations is itself an offense.
Anon forgets that Ford's pardon of Nixon didn't obstruct an investigation of others.
Posted by: Anonymous 2 | December 29, 2018 at 12:43 PM
Anon 2
That's likely the reason that the post didn't mention GHWB's. These posts, while superficially even handed, are always getting to the same point. Lawyers - advocates - argue the facts that support their case, and leave out the "bad" facts. Scholars are supposed to be different, at least when glossing their work with the patina of "scholarship" and claiming expertise in public by reason of being law professors.
These professors are undermining the credibility of legal academia. If legal academia is simply a mouthpiece for the Democratic Party then who can complain about polarization?
An example of how a scholar might approach a topic. Instead of blithely asserting that a statute criminalizes speech by "foreigners" (indeed, some may approach it by questioning whether money is speech, but that isn't an issue with respect independent or self expenditures), a scholar might question the legitimacy of any such law.
Have you read the decisions on this statute? My quick review revealed deep uncertainties in the courts about the permissible scope of the statute: for example, prosecuting a citizen of Mexico for speaking out in America about a candidate for office, contributing to his opponent's campaign, posting on Facebook, etc. Oh wait, excuse me.
No one on this site would ever consider any such issue, because to do so might reveal the authoritarian, anti-speech, totalitarian aspects of "progressivism."
Posted by: anon | December 29, 2018 at 01:09 PM
52 USC 3012(a)(1). Yup, you're right, were a Retail Theft shop.
Posted by: The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated | December 29, 2018 at 02:18 PM