The flurry of Trump pardons has begun. The pardon power must be reinterpreted to prohibit pardon of unidentified crimes and void pardons given in bad faith. Otherwise, the future for democracy is bleak.

The framers gave the President the same pardon power English Kings had, but no more. Pardons, at that time, involved intent to waive punishment for specific crimes as an act of mercy. Something different is amnesty, or general pardons, which exempts the recipient from application of the law, not just from the punishment meted because of its violation. In England, only Parliament had the right to grant amnesties.

The U.S. Supreme Court first interpreted the pardon power in 1833 in United States v. Wilson, which held that a pardon, if accepted and brought to the attention of the court in which the recipient is prosecuted, exempts the recipient from punishment. As argued in Justice Cooper’s dissent in the infamous Ernie Fletcher pardon case, an individual had to be convicted, or at least charged, in order to be pardoned.

The next occasion the Supreme Court had to interpret the pardon clause was after Lincoln’s assassination, when it upheld general pardons of all confederate soldiers granted by pro-South President Andrew Johnson. In its zeal to re-establish slaveholder power, the Court obliterated the distinction between pardons and amnesty in broad language that dispensed with any requirement that crimes “pardoned” be identified or charged. This became unchallenged dogma repeated in case after case thereafter. The legality of the most famous “pre-emptive” pardon, Ford’s pardon of Nixon for all crimes he “may have committed” during his presidency, was never tested.

The second dogma about pardons that must be corrected is that pardons power can be exercised arbitrarily and without constraint. The King of England could do what he wanted because he was above the law. However, a President is not. Article II, Section 3 of the Constitution requires the President to “take Care that the Laws be faithfully executed.” The term “faithful execution” had a received meaning, requiring persons subject to that duty to exercise power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal purposes. And what about other constitutional constraints? Can a president pardon all Republicans who assault Democrats without violating due process?

No important legal scholars are making these arguments. Republicans and Democrats both have exploited excessive pardon power, but absent virtuous leaders, the consequence of limitless pardon is criminal dictatorship. Theoretically, Trump could commit treason to gain the presidency, loot the treasury, obstruct justice to protect himself and his cronies, promote insurrection, and escape accountability or even investigation. First, he could pardon his family and cronies. Then, he could pardon himself, or step down and let Pence could do it a la Ford and Nixon, for “all offenses against the United States that Donald Trump ever may have committed prior to January 20, 2021.” It would be the perfect crime, and a template for future presidents.

No law can completely protect us from leaders who unreservedly embrace selfishness, are able to lie persistently without blinking, and discount the notion of any truth other than power and the accumulation of property. But if pardons are used to enable criminal enterprise, George Washington’s America is one step closer to becoming Putin’s Russia.

Mike Wilson is a lawyer, professor, and author of “Arranging Deck Chairs on the Titanic,” political poetry for a post-truth world.

This editorial was published January 15, 2021 in the Lexington Herald-Leader online