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.”

Garland resumed his practice, and then was elected senator from Arkansas and served as attorney general from 1885 to 1889. In 1898, he wrote a remarkably candid book about how the court operated titled “Experience in the Supreme Court of the United States with Some Reflections and Suggestions as to That Tribunal.”

The relatively recent practice of justices asking questions of the advocates caused great discomfort, Garland wrote. “Very often I have seen lawyers high up in their profession, but not used to the ways and manners of this court in this respect, frightened, so to speak, out of their wits into forgetfulness of the entire case, when suddenly called up by the court to know this or that before they had time to tell anything of it, and when they were getting ready to tell it.”

Because of a heavy caseload, Garland also opined, the justices would listen to argument well through the lunch hour. “Counsel is arguing in front and hears the rattle of dishes, knives and forks, and the judges are eating in a state of unrest.”

By the time 1 p.m. rolled around, Garland said, justices on the bench would often be “Napping, napping, only this, and nothing more.”

Contact Tony Mauro at tmauro@alm.com.