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The paradox of clemency: When executive pardon shields attacks on democracy
In Brief
- The executive pardon is historically a monarchical 'act of grace,' but in a republic, it constitutes a public trust that must serve the collective good, not individual compassion.
- Using clemency to shield individuals involved in acts of constitutional subversion or election interference transforms the pardon into a dangerous instrument of impunity.
- As Lincoln argued, physical rebellion in a democracy is 'radically wrong, unconstitutional, and treason,' requiring the protection of the law over executive discretion.
- The tension between executive will and the 'majesty of the law' determines whether a society is governed by impartial legal principles or the mutable discretion of its leaders.
Main authors
The power of executive pardon is a curious and potent feature within the architecture of modern governance. Originating as a monarchical prerogative, it is fundamentally an act of grace, a tool by which the head of state can exempt an individual from the punishment inflicted by law [1, 2]. This power allows the sovereign to operate as a 'court of equity,' softening the inherent rigors of the legal code in cases deemed worthy of exemption [3]. In principle, it serves as a final recourse for mercy and a corrective for potential injustices, a function every government has historically exercised at its discretion [4]. However, this capacity for clemency exists in a state of perpetual tension with the foundational principles of a republic governed by the impartial 'majesty of the law' [5].
This tension becomes acute when the pardon power intersects with existential threats to the constitutional order itself. The very discretion that allows for mercy can be perceived as a mechanism to subvert accountability, particularly for political crimes. When individuals who have participated in attempts to undermine democratic processes seek executive protection from legal consequences, the pardon transforms from an instrument of compassion into a potential threat to the rule of law [6]. This raises a fundamental question about the nature of sovereignty and justice: does the executive's power to forgive supersede the state's obligation to defend itself against internal rebellion? The challenge lies in reconciling a power designed to be absolute with the democratic imperative that the system of law must be defended from all threats, foreign and domestic, to prevent the decay of the republic itself [7, 8].
The Prerogative of Mercy: A Sovereign's Double-Edged Sword
Historically, the right to pardon is rooted in the concept of the sovereign as an authority superior to both the judge and the law they administer [9]. This perspective, as some theorists argue, grants the monarch a unique, almost spiritual power to nullify a crime by forgiving it, effectively undoing what has been done [10]. This prerogative is seen as an intrinsic element of sovereignty, a discretionary power that may even be beyond statutory restraint [11]. The executive alone is entrusted with this power, and it is often granted without explicit limits, encompassing the ability to issue amnesty and remove all penal consequences of an offense [12]. This boundless potential is a defining characteristic; some have noted that just as a king could theoretically declare perpetual war, he could also pardon all criminals, even at the risk of dissolving the legal order entirely [13].
In a constitutional republic, however, this absolute power is reconceptualized as a public trust [14]. The magistrate who wields it is not an unaccountable monarch but an invested official whose primary duty is to the commonwealth. Pardoning an individual unworthy of clemency is thus seen as a betrayal of that trust, an act that gives away a public right and potentially encourages further wrongdoing . An enlightened benevolence, focused on securing the foundations of good government, must take precedence over a weak or yielding compassion for the individual offender [15]. Consequently, the sovereign, whether an individual or an assembly, is bound by conscience and a duty to God to uphold the law in their own practice, lest they render it meaningless in the eyes of the people they govern [16].
The application of this power therefore demands a delicate balance between individual cases and the collective good. While some proponents argue for wide latitude, allowing the sovereign to dictate the terms and methods of pardon [17, 18], others contend its use should be extremely rare . The decision must weigh the claims of mercy against the imperatives of public safety [19]. An offence against a private person, for instance, cannot be equitably pardoned without the consent of the injured party, whereas an offense solely against the commonwealth may be forgiven at the sovereign's discretion [20]. This distinction underscores the inherent conflict: the pardon is at once a tool for tempering justice with mercy and a power with the potential to destabilize the very legal framework it is meant to supplement.
Clemency, Conspiracy, and the Challenge to Constitutional Order
The theoretical strains inherent in the pardoning power were starkly illuminated by the events following the 2020 U.S. presidential election. During this period, a concerted effort was made by presidential allies to pressure state legislators and officials to alter the certified election results [21]. This campaign was driven by a team of advisors who advanced various strategies to prevent the peaceful transfer of power, framing their actions as a defense of the constitutional order against its supposed detractors [22, 23]. The core of this effort involved a direct challenge to the legitimacy of the vote count, with the sitting president demanding that legally valid voting stop, a violation of both state and federal laws [24].
Central to this strategy was the deliberate propagation of falsehoods regarding electoral integrity, particularly concerning voting machines, by key figures who privately acknowledged these claims were untrue [25, 26]. This dissemination of misinformation was coupled with inflammatory rhetoric designed to mobilize supporters. The former president's senior advisors acknowledged their success in getting the political base 'FIRED UP' with language that led to violent threats against public officials [27]. This culminated in calls for rally-goers to 'fight like hell' and engage in 'trial by combat,' directly contributing to the subsequent assault on the U.S. Capitol .
The connection between these actions and the executive power of clemency became explicit when it was revealed that certain members of Congress who participated in these efforts subsequently sought presidential pardons for their conduct . This situation presents the ultimate test of the pardon's purpose within a democracy. The prospect of using an executive prerogative to shield individuals from accountability for acts aimed at subverting that democracy's core functions transforms the pardon from a tool of mercy into a potential instrument of impunity. It brings into sharp relief the tension between the executive's power to forgive treason [28] and the foundational principle that physical rebellions against a government ruled by law are themselves a form of treason .
The Majesty of the Law versus Executive Discretion
At the heart of the debate is the concept of the 'majesty of the law,' an ideal where legality itself—an impartial and abstract force—constitutes the supreme power, rather than the personal will of a ruler . In a stable republic, the sovereign is expected to be bound by the laws, not as a matter of legal jurisdiction over themselves, but as a moral and practical necessity to prevent the legal code from being despised and ignored . Any breach of the law is considered an offense against the entire commonwealth, and to oppose a sovereign's law is a sin against the established order [29]. The government's most important function is to protect the people, a duty fulfilled by defending truth and upholding the integrity of democratic institutions [30].
The unfettered use of executive discretion, however, poses a direct threat to this legal majesty. An executive who displays contempt for common civil rights is unlikely to respect the constitutional limitations placed upon the royal prerogative [31]. When executive clemency is exercised with such frequency that it becomes an expected outcome, it undermines the entire judicial process. Juries may connive at acquittals and judges may condemn with the expectation of a pardon, creating a system that tempts dishonesty and erodes public faith in justice [32]. This dynamic is particularly dangerous when it shields actions that directly assault the democratic framework, as it risks institutionalizing the idea that such acts are beyond meaningful consequence.
Ultimately, the stability of a democratic society depends on the collective confidence and security that the law provides for all citizens . This security is threatened when the mechanisms of governance are used to protect those who seek to dismantle them. In a democracy where the majority rules through legal forms, physical rebellion is not merely a crime but a fundamental betrayal of the social contract . The failure to impose consequences for such acts, whether through a pardon or otherwise, jeopardizes the fragile nature of democratic life . It forces a choice between upholding the sovereign's discretionary power and preserving the legal and moral order upon which the nation is built.
The executive power to pardon is an inheritance from an autocratic tradition, embodying the idea that the sovereign stands above the law they execute . When transplanted into a democratic republic, this prerogative creates a deep and persistent contradiction. While it can serve as a valuable tool of mercy and a corrective for the law's imperfections [33], its discretionary nature poses a significant risk to the principle of equal justice under law. This risk is magnified exponentially when clemency is contemplated for acts of political insurrection, where the pardon could serve to ratify an attack on the constitutional order itself . In such moments, the ruler's obligation shifts from compassion for the individual to the preservation of wise and good government for all .
The tension between mercy and law is a timeless feature of jurisprudence [34, 35]. However, when the object of that mercy is a direct assault on the state, the dilemma transcends legal theory and becomes a defining test of a nation's character. It forces a confrontation between the sovereign's personal 'act of grace' and the government's collective responsibility to 'defend the truth and to defeat the lies' . The resolution of this conflict reveals whether a society is ultimately governed by the impartial majesty of the law or by the mutable will of its leaders .
