With reports indicating President Trump has asked about pardoning his close aides and even himself to thwart special counsel Robert Mueller’s investigation, you might be surprised to hear that there is precedent for an executive pardoning his own actions. The man who did it first was Isaac I. Stevens, first territorial governor of what is now Washington state, and he did it during one of the most bizarre chapters of the often-colorful history of the American west.
It was 1856, and sporadic conflict between settlers and the local Indians had degenerated into war. The war was not going well for the settlers. Repeated Indian raids had forced many settlers to seek shelter for the winter in blockhouses. Meanwhile, volunteer patrols were proving singularly unsuccessful in efforts to catch the marauding bands.
Stevens, also military commander of the territory, gradually began to suspect that some of the settlers were colluding with the enemy. The Washington landscape was dotted with farms owned not by American pioneers but by former employees of the British Hudson Bay Company, which had been active in the territory when it had been under the joint control of the English and Americans a few years earlier. They had married Indian wives and settled in Washington, and their family connections protected them and their farms from the attacks.
Stevens suspected these settlers were in league with the Indian raiders, passing warnings to them whenever the patrols were out. He ordered them to leave their farms and move to the blockhouses with the other settlers. When several refused, he declared the county to be under martial law and had them arrested. The imprisoned settlers hired lawyers, and that’s when everything flew straight off the rails.
Arresting Judicial Developments
Judge Edward Lander convened a court in the affected county to hear the settlers’ claims of corpus. To prevent the judge from ordering their release, the governor sent a colonel of the state militia to stop the court from proceeding. Col. Benjamin Shaw stopped the hearing, arrested the judge, and brought him before the governor in Olympia.
Once Lander was in Olympia, Stevens ordered him released on the grounds that Olympia was not under martial law and thus he had no right to hold him there without charges. The newly freed jurist immediately convened a court in Olympia, issuing writs of habeas corpus for the imprisoned settlers and a contempt of court citation for the governor. He also sent marshals to arrest Stevens for contempt.
When the governor heard what Lander had done, he immediately declared Olympia to be under martial law as well and ordered Lander’s arrest, sending a company of volunteers to take the judge into custody again.
The governor’s forces were successful and Lander’s marshals were not, so Lander was once more arrested and brought to the governor. Stevens offered to release the judge again if he would promise not to re-open his court without permission. When Lander refused, he was imprisoned with the settlers he had tried to free.
Justice Is Ultimately Served
When details of what had occurred reached the ailing chief justice of the Territorial Supreme Court, Francis Chenowith, he rose from his sickbed to travel by canoe to the heart of the dispute, where he convened a court to continue where Lander had left off. Stevens sent troops to break up this court as well, but Chenowith was ready: he had ordered the county sheriff to organize a posse of 50 men to defend his court. When the soldiers found the posse awaiting their arrival, they retreated rather than risk bloodshed.
The whole saga finally came to a close when the court-martial Stevens had ordered to try the settlers ruled that it did not have jurisdiction, and recommended that the settlers be tried in civil court. Now without allies, the governor capitulated, and released the settlers and, for the second time, Judge Lander.
The settlers returned home, but for Lander it wasn’t over yet. He convened a court yet again and found Stevens guilty of contempt of court, sentencing him to pay a $50 fine. For this offense Stevens performed the act, unique thus far in American history, of issuing a pardon for himself.
The episode was a disgrace from start to finish. For playing the petty tyrant throughout, Stevens was censured by the territorial legislature and the U.S. Senate, and reprimanded by the secretary of State. Nevertheless, he remained popular in the colony and would eventually serve with distinction as a general in the Union Army until he was killed at the Battle of Chantilly.
Self-Pardon Destroys the Law
It’s instructive that the first precedent for pardoning oneself can be found in one of the strangest outbursts of banana republicanism in American history. Just as it is inappropriate to declare martial law for the purpose of preventing a court’s proceedings, it is a violation of democratic norms for a governor or president to pardon himself, because an executive who can pardon himself or herself cannot be constrained by the bounds of law.
Much of the Trump presidency has involved the rejection of the “old playbook” in favor of the new. Yet for the sake of American democracy, President Trump would do well to leave Stevens’s playbook in the history section, where it belongs.