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On Tuesday, we reported on the pronoun-based pardon theory:

Did the framers intend to give the President the power to override the Governor on matters of state law? That seems like a stretch for the Revolutionary framers… But for the Reconstruction framers? They probably did. Of course, my position is that those amendments are illegitimate because the state legislatures that ratified them were appointed by the federal government. Regardless, those amendments transformed our nation… We are in a transformational moment again in our nation.

Which kind of America do we want to be?

I like the constitutional question presented here, because I think this Supreme Court could render a decision that moves us closer to originalism. But that would not be a good outcome for Tina Peters, however; her argument (as I understand it) relies on the Reconstruction ideology, and requires the federal government to claim more power than it should have. So, this specific action – pardoning Peters and fighting about authorities in court – could lead to a binding precedent that helps America restore the liberty of her youth – but cuts off opportunities for Tina Peters’ release. “What truly matters is not which party controls our government, but whether our government is controlled by the people.”

We are now going to get an answer on this. President Donald Trump announced on Truth Social that he is granting a “full pardon” to Tina Peters:

In that same piece, I speculated that the message Ticktin was sending was:

Do this novel thing, and Tina will be out by Christmas. If Tina isn’t out by Christmas, it’s all President Trump’s fault.

President Trump has now taken that narrative off the gameboard — he's done the novel thing, and the courts will decide this matter. Smart.

Ticktin argues that the framers intended for the President's pardon power to extend into the states. We explored his arguments on Tuesday and shared his letter to the President. Ticktin claims the enumerated powers include the right to pardon all state crimes, because

"In that day and age, they were speaking of the United Countries, and the President was given the right to pardon all offenses. Moreover, it does not make sense that they intended to give the individual states the power to circumvent the President’s power to pardon.” [Ticktin's Letter]

This is an interesting assertion. Alexander Hamilton discusses some of this in Federalist 74, when he is arguing for centralized pardon power in matters of insurrection:

"It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.

On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity."

This reads as an argument to free Tina Peters while also undermining Peter Ticktin's argument to freeing Tina Peters in this way.

"On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable... The loss of a week, a day, an hour, may sometimes be fatal." -- Federalist 74

That sounds like exactly what is happening to Tina Peters. In the same paper, however, Hamilton says this:

"The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it."

The framers were defining federal pardon power. That provision was consistent with the powers already defined in the State constitutions — which reserve State pardon power for the governors.

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." — James Madison (Federalist 45)

The current consensus says that federal and state crimes are separate offenses, and a pardon in one system has no legal force in the other. Therefore, a state court has no obligation to recognize a federal executive act that purports to alter state law. Before now, now President has attempted this act, expecting that such an effort would (1) be ignored by the state, (2) provoke an immediate separation-of-powers crisis, and lose instantly court.

That's been the theory. And no President has tried.

Until now.

As we said Tuesday, this pardoning Peters and fighting about authorities in court could lead to a binding precedent that helps America restore the liberty of her youth – but cuts off opportunities for Tina Peters’ release. 

Either way a fight is brewing. Let's see what happens.

This is a developing story.

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