Less than 24 hours after taking the presidential oath of office for a second time, Donald Trump made good on his promise to grant clemency to the people who stormed the Capitol on Jan. 6, 2021. With a stroke of his pen, he tried to turn insurrectionists into patriots and people who tried to prevent the peaceful transfer of power into heroes.
On Monday, Trump pardoned about 1,500 Jan. 6 offenders and commuted the sentences of 14 people people convicted of crimes related to the insurrection. He did so over strenuous objections not only from Democrats, but also from people like U.S. Capitol Police Chief J. Thomas Manger, who noted that his opposition “is not about any particular president.”
“What message does that send to police officers across this nation,” Manger asked, “if someone doesn’t think that a conviction for an assault or worse against a police officer is something that should be upheld?”
Trump’s pardons are unprecedented — but not because he is granting mercy to rebels. He is not the first or only American president to do so. Indeed, at the birth of the Republic, Alexander Hamilton foresaw just such a use of the pardon power. As Hamilton put it in Federalist 74:
In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterward to recall.
Trump’s pardon of the Jan. 6 insurrectionists turns this vision on its head. As one of the first acts of his presidency, it certifies his view that we are two nations, not one. Instead of restoring “the tranquility of the commonwealth,” the pardons inflict a fresh wound even as they invite us all to relive a national trauma.
Contrast Trump’s pardons with those George Washington issued on Nov. 2, 1795. That day, he spared two men who were convicted of treason and sentenced to death for their part in the so-called Whiskey Rebellion.
One month later, in his seventh State of the Union address (a speech Hamilton helped to write), Washington explained why he had exercised the president’s clemency power. “It appears to me,” he said, “no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”
The result, Washington claimed in an echo of Federalist 74, was that “the part of our country which was lately the scene of disorder and insurrection now enjoys the blessings of quiet and order.
On Dec. 25, 1868, another president showed mercy to rebels. Shortly before the end of his term, President Andrew Johnson pardoned all the Confederate soldiers who fought in the Civil War. He took this action, he wrote, to “renew and fully restore confidence and fraternal feeling among the whole, and their respect for and attachment to the national [e.g., federal] government, designed by its patriotic founders for the general good.”
Neither Washington nor Johnson made clemency a campaign issue. Not so Donald Trump.
Neither Washington nor Johnson denied the truth about the rebellions that occasioned their acts of mercy or diminished the seriousness of what those they pardoned had done. Not so Donald Trump. Just to pick one example, in 2022 he labeled the story of what happened on Jan. 6 “the insurrection hoax,” a “grotesquely false, fabricated, and hysterical partisan narrative” and “a lot of crap.”
In offering those pardons, neither Washington nor Johnson attacked the justice system or their political opponents. Not so Donald Trump. The president has said repeatedly that the radical left is using the events of Jan. 6 as a “pretext for their all-out war on free speech.” And he called the rioters “Americans who were denied due process and unfairly prosecuted by the weaponized Department of Justice.”
And neither Washington nor Johnson made clemency a campaign issue. Not so Donald Trump, who was the first person ever to make the promise of pardons a central part of their presidential campaign. In doing so, the president asked voters to endorse his revisionist view of what happened on Jan. 6. Trump’s effort to erase the truth of what the “J6 warriors” did from the legal record reflects a view of the pardon power that was much more common in the republic’s early days and in Andrew Johnson’s time than it is now. In an 1866 Supreme Court ruling, Justice Stephen J. Field wrote that a pardon “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 … it makes him, as it were, a new man, and gives him a new credit and capacity.” Field repeated that understanding six years later, this time writing for a unanimous court: A “pardon not merely releases the offender from the punishment prescribed for the offense … it obliterates in legal contemplation the offense itself.” But unlike Trump, the 19th-century court still acknowledged that pardons cannot undo history. They do not and cannot “alter the actual fact” of what their recipients did to necessitate clemency. As leaders of the advocacy group Public Citizen suggested earlier this month, “The incoming administration believes that their word trumps historical facts.” But much to his chagrin, even Trump cannot turn the pardon power into a tool to “alter the actual fact[s]” of Jan. 6. There is one other way that Trump’s pardons depart from Hamilton’s view of the pardon power: the simple fact he did it on his first day. Pardoning the Jan. 6 insurrectionists on Jan. 20 offers a startling preview of the president’s second-term governing philosophy. He did it not despite the hard feelings that would accompany that act but because of those hard feelings. The pardons send what Jacob Ware, a research fellow at the Council on Foreign Relations, calls “‘a thundering message of permission’ for the use of violence for political gain and election denialism at home and overseas.” With polls indicating sharp partisan divisions about the merits of clemency for the Jan. 6 insurrectionists, the president’s action will divide, not unify. It will inflame divisions, not heal them. That possibility does not bode well for a country already on edge and divided into warring camps. Worse still, as The Washington Post reports, there may be more to come: “Trump’s attorney general could also drop charges against the roughly 300 defendants still awaiting trial, some of whom have sought to postpone those proceedings until after the presidential inauguration.” But even if that does not come to pass, what Trump did on his first day in office has Alexander Hamilton rolling over in his grave.
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
