Under Article II, sec.2, the president was given the “power to grant reprieves and pardons for offenses against the United States,
except in cases of impeachment.” After the Constitution was drafted in the summer of 1787, it had to be ratified by at least nine of the states before it would take effect. Nearly everyone agreed that the president should have the power to pardon; some thought, however, that no one should be pardoned in the case of treason without the concurrence of at least one of the two houses of the legislature, because, in the marvelous phrase of Alexander Hamilton, “the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded.”
The possibility that the president might use the power to pardon as a means by which to protect those with whom he had conspired to do harm to the United States by “adhering to,” or giving “aid and comfort” to, its enemies, led to one of the most important, but least remembered, exchanges in debate over whether the Constitution drafted in Philadelphia should become the Constitution of the United States. The exchange demonstrated that not only are there serious limitations on the president’s power to pardon, but that a president’s threat to use that power may itself be grounds for impeachment.
On the afternoon of Wednesday, June 18, 1788, George Mason rose from his chair on the floor of the Virginia Ratifying Convention deeply troubled by what he thought of the convention’s failure to understand—the president of the United States might not always be someone of sound character and high intelligence. There would rarely, if ever, he reminded the delegates, be a commander in chief with the courage and rectitude displayed by George Washington during the War of Independence. There might even be a president who would try to change our form of government. The president, argued Mason,
“ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”
