One non-judicial Section Three precedent that I discussed in my law review article concerned the failed nomination of Alexander Lawton in 1885. I thought I’d talk about that precedent here with some additional details that address Congress’s exclusive amnesty power
Alexander Lawton was a U.S. Army officer who joined the Confederacy and rose to the rank of brigadier general. (He also served as the Confederate Quartermaster-General). In 1885, President Cleveland nominated Lawton as Ambassador to Russia. The Senate Foreign Relations Committee refused to consider the nomination because Lawton was covered by Section Three and had not received amnesty.
The nomination was withdrawn, but the President obtained an opinion from the Attorney General concluding that Lawton was eligible because he was pardoned by Andrew Johnson. The opinion was clearly erroneous, in that Congress rejected an amendment to Section Three that would have exempted anyone who had received a pardon. The Attorney General’s view was also widely denounced in the press as an attempt to nullify what was left of Section Three and as totally inconsistent with past practice. (Almost all former Confederates got a pardon from Andrew Johnson, so by the AG’s logic hardly anyone was disqualified by Section Three.) Cleveland wanted to give Lawton a recess appointment, but Lawton decided to pull his name from consideration to spare the President any political embarrassment.
Congress was not satisfied with this resolution. When they returned in December 1885, one of the first statutes they passed was a private amnesty bill for Lawton. They were making it clear that they–not the President or anyone else–got to decide who received amnesty. In 1887, Cleveland nominated Lawton as ambassador to Austria-Hungary, where he served until 1889.
Posted by Gerard Magliocca on January 4, 2024 at 09:51 AM