The US Constitution
President Donald Trump's personal lawyer Jay Sekulow said on Sunday that the U.S. Supreme Court may ultimately be called on to decide the scope of presidential pardon power.
If that happens, the justices will likely dust off one of the few cases in which the high court has ruled on the pardon power: the 1866 decision in Ex Parte Garland, involving one of the most prolific and acerbic advocates before the court: Augustus Garland.
The Garland ruling, already cited in recent articles about the pardon issue, stated, The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.
Garland argued more than 130 cases at the high court, according to an article about rebels in the Supreme Court bar on Mayer Brown's website. The Arkansas lawyer later became U.S. attorney general and in 1899 suffered a stroke while arguing before the justices. He died minutes later, and The Washington Post wrote a story about it under the headline, Death Ended His Plea.
So why did Garland become embroiled in a pardon case in 1866? It stemmed from the fact that Garland supported the Confederacy during the Civil War and served in the Confederate Congress, representing Arkansas.
In January 1865, Congress passed a law barring any lawyer who had voluntarily borne arms against the United States or was a Confederate official from appearing in the Supreme Court an extension of other laws mandating similar prohibitions for other federal employees.
Garland learned of the prohibition when he returned to the court after the Civil War, according to the Mayer Brown article. He mounted a full-scale battle to fight the law on several grounds, claiming it was an ex post facto statute, and a bill of attainder. He also informed the court that President Andrew Johnson had pardoned him earlier in 1865 for all offences committed by his participation, direct or implied, in the Rebellion. That too was a reason for declaring the law unconstitutional, Garland asserted.
In a 5-4 decision, Garland prevailed on all counts. The prohibition against appearing before the high court was a form of punishment, the court reasoned, and therefore was erased by the pardon. Justice Stephen Field wrote for the majority, When the pardon is full, it releases the punishment and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offence.