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Trump has the power to issue preemptive pardons. Here’s how past presidents used it.

At the end of most presidencies, one of the last things a president does is issue pardons. Here's how past presidents have exercised this power. (Video: Monica Rodman, Sarah Hashemi/The Washington Post)
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There was little debate about the pardon power at the Constitutional Convention. Near the end of it, on Sept. 15, 1787, Virginia delegate Edmund Randolph proposed an exception be added, barring the president from pardoning cases of treason.

“The prerogative of pardon in these cases was too great a trust,” Randolph said, according to James Madison’s notes. “The President may himself be guilty. The Tra[i]tors may be his own instruments.”

Not to worry, a Pennsylvania delegate replied: “If he be himself a party to the guilt he can be impeached and prosecuted.”

They put it to a vote. The measure failed overwhelmingly.

At another point in the debate, a delegate moved to add “after conviction” to the clause, but he quickly rescinded his motion.

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This is why presidents have such a broad and even preemptive power to pardon — a power President Trump is said to be considering using for family members and even himself, as first reported by the New York Times. While there is no precedent for a president pardoning himself, preemptive pardons have a long history.

In fact, the very first pardon, by the nation’s first president, George Washington, was in part preemptive.

Everyone loved George Washington, until he became president

Starting in 1791, the federal government instituted a tax on whiskey to help pay the young nation’s foreign debts. Distillers in the backwoods of Kentucky and Pennsylvania bore the brunt of the tax and felt it was unfair. As historian Alexis Coe recounts in her Washington biography “You Never Forget Your First,” the distillers first petitioned the government, with no response. Then they began peaceful protests in Pittsburgh, again to no effect. Finally, they started tarring and feathering tax collectors and burned down a supervisor’s home.

What happened next is what Coe called “the biggest overreaction of his life.” Washington perceived the distillers to be treasonous, questioning the legitimacy of the entire government. He gathered a militia, had a uniform made and headed to Pittsburgh to confront the distillers himself — making him the only president to take up arms against his own people, Coe wrote.

He thought better of it and turned around before the confrontation, but troops still arrested more than 150 people on charges of treason. Two were convicted, but Washington — in a show of national unity and perhaps some embarrassment — pardoned the entire group.

Nearly two centuries later, when President Gerald Ford pardoned his predecessor, Richard M. Nixon, he also said it was a matter of national unity. It was only a month after Nixon had resigned, and questions remained over whether he would face prosecution or could even receive a fair trial.

“During this long period of delay and potential litigation, ugly passions would again be aroused,” Ford said in an address to the nation on Sept. 8, 1974. “And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.”

President Gerald Ford addressed the nation from the Oval Office and pardoned former president Richard Nixon on Sept. 8, 1974. (Video: Gerald R. Ford Library and Museum)

The unity claim didn’t go over well with the public. Instead of allowing the nation to move on, it suspended in animation the question of Nixon’s guilt and gave many in the public the sense that Nixon had gotten off with a special favor from his successor. For his part, Ford always felt that Nixon’s acceptance of the pardon was also an acceptance of guilt, though neither man ever had to explain exactly for what.

Ford’s presidency never recovered. He was voted out two years later.

Trump is considering presidential pardons. Ford never recovered from the one he gave Nixon.

While on the campaign trail in 1976, Jimmy Carter made pardoning draft-dodgers one of his campaign promises. And on Jan. 21, 1977, his first full day in office, he made good on that promise. More than half a million men were flagged as draft offenders during the Vietnam War era, according to David Cortright in his book “Peace: A History of Movements and Ideas.” Fewer than 9,000 were ever convicted of draft-related crimes, but approximately 50,000 to 100,000 had fled to other countries, mostly Canada. In extending a preemptive pardon to those exiles, Carter cleared a pathway for them to come home. About half did.

Like Washington and Ford before him, Carter pitched his preemptive pardon as a matter of national unity, as moving on after years of struggle and division. Much of the public accepted it as such, but Carter was also criticized on both ends of the political spectrum: by those who said the pardon disrespected the service of those who had followed draft orders, and by activists who said the pardon didn’t go far enough.

The pardon specifically left out deserters — those who had avoided military service after having been inducted — who were largely poor and people of color, versus exiles who left before they were inducted, who were mostly middle-class and White.

Read more Retropolis:

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