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STORY BY TIM NAFTALI

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Published on December 23, 2020 9:16 PM

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LIBRARY OF CONGRESS / CORBIS / GETTY / T?HE NEW YORK TIMES / REDUX
Yesterday evening, President Donald Trump issued 15 pardons and five commutations, including two for individuals found guilty of charges arising from Special Counsel Robert Mueller's investigation. He is reportedly considering a raft of other Christmas pardons—for sympathetic allies, for loyal retainers, and even for family members.

The prospect of a president using his power to protect aides accused of breaking the law is disturbing, but it's hardly novel. In 1973, President Richard Nixon mulled over the idea of issuing Christmas pardons for his Watergate co-conspirators.

Nixon's pardons would have been—and many of Trump's pardons certainly would be—bad presidential pardons. In 1925, thanks to a Chicago innkeeper's decision to ignore a court injunction to stop selling alcohol during Prohibition, the Supreme Court took the time to explain why: "To exercise [the pardon power] to the extent of destroying the deterrent effect of judicial punishment would be to pervert it."

But despite seeing that danger clearly, the chief justice at the time, writing for a unanimous Court in Ex Parte Grossman, declined to limit the presidential prerogative. He was certain that no president would ever be so corrupt as to issue bad pardons. "Our Constitution confers this discretion on the highest officer in the Nation in confidence that he will not abuse it," he wrote. And the chief justice thought he was uniquely qualified to say so: William Howard Taft is the only member of the Court ever to have been president. Taft considered himself a gentleman, and he expected his successors to behave like gentlemen, too.

Fifty years after Taft issued that opinion, Nixon challenged the assumption that no president would use a pardon to undermine the American system of government. As we await Trump's Christmas pardons, with the expectation that many will be self-serving and injurious to the pursuit of justice, the intertwined tales of Taft and Nixon help explain why, after two centuries, we are still so vulnerable to bad pardons, a power that the Framers left unchecked.

Philip grossman, who just wanted to make a buck selling hooch in 1921, had no idea that his being found guilty of contempt of court—with a one-year sentence and a $1,000 fine—would prompt the Supreme Court to establish a broad interpretation of the presidential pardoning power. But Calvin Coolidge, who became president in 1923 when the hapless Warren G. Harding died, decided later that year to commute Grossman's sentence for contempt of court, eliminating the jail time (but keeping the fine).