Clemency is much in the news. President Trump on his way out of office has used the presidential power of pardon and commutation (clemency includes both) to benefit associates such as Paul Manafort and Roger Stone; staff members and administration officials, notably Michael Flynn; his personal lawyer Michael Cohen; and his daughter’s father-in-law Charles Kushner. The executive power of clemency is absolute, but odd. There are thought to be a lot of good reasons for clemency: The convict has sincerely and thoroughly reformed, and there is no longer any purpose served in punishing or incarcerating him. Newly discovered evidence has emerged that exonerates the convict. Because of age or infirmity, the convict no longer poses a danger to society. Attitudes have changed, and what once seemed an appropriate punishment now strikes us as excessive. The convict is about to die, or (occasionally) about to give birth, events of such moment that few of think they should occur in prison.

Clemency is not a recent concept. Seneca wrote a treatise on it, to his emperor Nero, recommending the model set by Caesar Augustus of an absolute ruler that nevertheless exercised his power reasonably and (in Seneca’s phrase) “mildly”. Clemency was the virtue of having absolute power but not using it, or only using it with restraint, to serve the common good. Seneca’s essay on clemency was very influential for John Calvin, who wrote an analysis of it as his first published work. Clemency shows up time and again in Calvin’s philosophy of equity, which both informed his thoughts on social organization and his model of Christian charity. Clemency also factored largely in the work of Hugo Grotius, who in the 17^th Century essentially invented the modern notions of international law. The clemency of which Grotius wrote was restraint in the behavior of a strong nation towards a weaker, similar to what Seneca saw as the proper attitude of a ruler towards his subjects. According to Grotius, nations are certainly entitled to defend themselves but they not to take advantage of each other, to impose their will unnecessarily. And, in the 18^th Century, Montesquieu (in The Spirit of Laws) saw clemency as essential to the operation of government, because it built respect for those in power. In his classification of governments as republican, monarchical or despotic, he found it most important to a monarchy, which operates on principles of honor, as opposed to a republic (which, he said, ideally operates on principles of virtue) and a despotism (which would be defeated by clemency, because despots rule through fear.) Finally, the power of pardon is mentioned in the United States Constitution. It is, in fact, one of the few absolute executive powers carried over from the English constitutional monarchy, as the Constitution sought to limit the powers of the executive.

Clemency also carries a good deal of theological baggage. For many it seems an echo, if not a manifestation, of Christian mercy. However, mercy and its counterpart judgment are one of many dualistic concepts that have bedeviled Christian theologians from the beginning: free will versus predestination, faith versus works, reason versus revelation, to name just a few. Most Christians, I would guess, are all for showing mercy to recipients that deserve it, either because they were wrongfully convicted in the first place or because they have truly reformed, but expect strict justice for those deemed unworthy. Which is fine, but not exactly a Christian idea, since Christians consider grace to be unmerited.

Oliver O’Donovan, in The Ways of Judgment, talks about the paradox, saying that “since patristic times the theological tradition of political thought has consistently wished” to “incorporate forgiveness” into an act of judgment. However, as he points out, even Augustine was able to identify the issue more than resolve it. But then O’Donovan says something profound: when the government extends clemency by reversing or modifying a previous act, it does more than undo what was previously done. It declares who it really is:

The possibility of mercy arises when judgment reflects upon the conditions of its own performance…Forgiveness corrects the established pattern of justice as the pattern of justice corrects itself by attending to itself and passing judgment on itself…It must tell the truth not only about the cases that come before it for judgment, but about itself. (The Ways of Judgment, 93-95).

That being the case, what truth about himself, and by extension the executive power, does the President express? That confessions, such as Michael Flynn’s, are to be provisional, subject to retraction? (Recall that Flynn plead guilty to the charges against him.) That using the power of executive clemency to benefit friends and family disproportionately is acceptable? O’Donovan notes that using forgiveness as the final step in the justice system, the executive is doomed to discriminate. Because not all can receive clemency – that would be to have no justice system at all – forgiving one discriminates against those not forgiven. And, when the President declares not only that this cast of characters is pardoned, but that they are “great Americans” even as they conspired with our enemies and then admitted it, he seems to think that he can somehow make them great Americans in what O’Donovan calls a “constitutive act”, accomplishing some sort of political justification restoring right relationships between them and their country. This borders on blasphemy, assuming a power that Paul, in Romans, says is reserved to God alone.

By these pardons, the President has declared, loud and clear, who he is, and what he believes the proper use of executive power is. There certainly is nothing virtuous in it, as we would expect in a republic, or even honorable, the standard by which Montesquieu judged monarchs. It smacks of nothing so much as a despot, creating fear in opponents through unwarranted clemency to allies. The country, whether the President believes it or not, rejected him in the November election. Let us hope that in the years to come we also reject his model of executive power.