With each day bringing new White House announcements still more shocking than the last, it’s no surprise that President Donald Trump’s decision to overturn and erase the biggest single criminal prosecution in the nation’s history has not led to much of a lasting outcry or critical analysis.

That announcement on his first day in office gave clemency to more than 1,500 Jan. 6, 2021, insurrectionists and protesters for their assault on the U.S. Capitol — including some convicted for beating police and with prior convictions for such crimes as rape, manslaughter and domestic violence. The president exercised his unlimited constitutional power to pardon federal crimes without consulting his Justice Department, the prosecutors who sought and won the convictions or the judges who heard their cases.

Three days earlier, then-President Joe Biden commuted the sentences of nearly 2,500 inmates serving long prison terms for what he said were nonviolent drug offenses. “I have now issued more individual pardons and commutations than any president in U.S. history,” Biden said, proudly. Like Trump, Biden mostly ignored the slow and selective process created by Congress in 1865 to guide presidents in their exercise of this unique constitutional authority. Some of the beneficiaries of Biden’s decisions were accused of gang-related offenses, sexual violence and conspiracy to commit murder.

How this unfettered clemency power came to be written into our Constitution and how, in spite of frequent abuse, it seems immune from limitation or even much examination by Congress or the courts is the subject of a recent book by University of Baltimore law professor Kim Wehle: “Pardon Power: How the Pardon System Works — and Why.”

Think of it: Congress and the courts routinely block or short-circuit actions that presidents want to take, such as moving appropriated money from one agency or another (to finance a wall along the Mexican border, for example) or to forgive college student loans made by the government. But if Trump or another president decided, on whatever whim, to open the gates to the nation’s most secure prisons and let every prisoner go free, no one would have the power to stop him.

It’s unlikely that the founders had these mass commutations in mind in 1788 when adopting the Constitution which, in Article II Section 2, provides the president “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” It is a power that Britain’s monarchs once had, Wehle writes, but by 1690 Parliament made it illegal for the Crown to take such an action without Parliament’s consent.

The pardon power was one of many provisions in the Constitution that the framers, and later the state delegates who ratified it, debated. Some thought the power should lie with the legislature or the courts or be shared somehow. Alexander Hamilton argued that “a single man of prudence and good sense” was best suited to make such decisions and not political bodies. He also argued that where mercy and humanity were at stake, “that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”

According to Wehle, amnesty or mass pardons following wars or uprisings date back to the ancient Greeks in 403 B.C. With the exception of China, she writes, every contemporary government on the planet has within its charter some version of an individual or group pardon power in its legal system. While the criminal justice system in this country, supposedly constructed to convict the guilty and protect the innocent, is improved from the days when only white men held power and the law itself was arbitrary, only a fool would claim that it is consistently fair and just. The pardon, one might hope, offers at the federal and state level a last-ditch way to avoid prison or have a wrongful conviction righted when the system has failed.

Except, of course, that few people caught up in the legal system have the resources and the reach to pursue a pardon or sentence commutation. Ordinary people have little knowledge that such a possibility even exists. Those who do but lack the money to hire lawyers or lobbyists to make their case are mostly out of luck. Convicted citizens and presidents don’t run in the same circles.

In theory, an individual with time and information can fill out a form, send it to the Department of Justice and hope that the request is read, processed and eventually moved to the president or his lawyers for consideration. The DOJ has an Office of the Pardon Attorney for which it has requested $22.7 million this year to support a staff of 40, including 26 attorneys. But when the White House changed tenants in January, there was a backlog of thousands of applications in the pardon office, some pending for many years.

Wehle provides an interesting overview of early clemency cases, beginning with Presidents George Washington and John Adams. Congress enacted an excise tax on whiskey and other spirits, to be collected from the producers. Farmers in western Pennsylvania who distilled the liquor rebelled in 1791, resulting in three years of conflict with government troops. Washington pardoned every one of the rebels.

A second tax revolt, also in Pennsylvania, by farmers led by John Fries in 1799 forced President Adams to again send in troops. Fries was arrested, convicted of treason and sentenced to hang. He was pardoned by Adams in April 1800, when the president declared a general amnesty for all who had been involved. During the Civil War, President Abraham Lincoln pardoned Union Army soldiers who deserted and were captured, provided they rejoined their unit and did their duty.

More recently, pardons issued to curry favor with voters or donors, threaten or silence political rivals, reward friends and family and evade accountability (as when President Gerald Ford gave President Richard Nixon a blanket pardon post-Watergate) have become common, Wehle suggests — legal, but a corruption of the system.

Because pardon power is explicit in the Constitution, changing or limiting it is virtually impossible. If a rationale for the current pardon system exists, certainly it is weakened by the presidential power plays we’ve seen most recently from Biden and Trump. Judges in criminal cases can, and often do, suspend the sentence of a criminal found guilty or point to unique circumstances to limit jail time. In those instances, it’s likely the judge is focused on the facts of the case and fairness, not on politics.

As practiced today, Wehle says, the pardon power hurts democracy and undermines the rule of law. Congress cannot repeal it, but it has the power to respond to real or perceived corruption and abuse by calling it out and disincentivizing it. It can demand transparency and adherence to the system in place, constrain lobbying and fee-taking to promote clemency and take steps to constrain political distortions in a system meant to promote mercy and fairness.

Is it reasonable to expect the current Congress to take any action to clean up the system? Wehle doesn’t say.

Bill Hamilton (billhamilton@mail.com) is a retired public affairs consultant and lobbyist who lives in Baltimore.