Last month, President Donald Trump issued a pardon to a scientist who helped secure an allied victory in World War II. Zay Jeffries helped develop artillery shells capable of piercing the armor of German tanks and also consulted on the top-secret Manhattan Project, which produced the first atomic bomb. Prior to his significant involvement in the war effort, he was indicted in 1941 on antitrust charges related to his employment. At the time that he was indicted, top defense officials asked for his prosecution to be delayed until after the war. They stated that Jeffries "is now engaged in research of the utmost importance to victory in the war which he feels he would have to drop in the immediate future in order to prepare for trial …" Then U.S. Secretary of War Henry L. Stimson wrote, "I therefore state that in my opinion the prosecution of the case … will seriously interfere with the war effort."

In 1947, when the Justice Department finally returned to the case, it grounded its legal argument in a theory of U.S. Supreme Court precedent that did not exist at the time when Jeffries was first indicted. In 1948, Jeffries was convicted and fined $2,500—the same year that President Harry S. Truman ironically awarded him the Presidential Medal for Merit. He was given no time in jail.

The decision to pardon Jeffries, who went on to receive numerous accolades in the scientific field, is an example of the immense power behind the presidential pardon. While Jeffries' pardon here is rather uncontroversial, it represents an example of the twofold use of the pardon—it can be a Hail Mary remedy for an individual antitrust violator and it can also allow the president room to disagree with, and even reverse decisions of his own or past administrations. Jeffries' pardon appears to be the first applied to antitrust conduct by any president serving after the Sherman Act was passed in 1890.

The pardon power originates in Article II Section 2 of the Constitution which gives the president the power to "grant reprieves and pardons for offenses against the United States." The rationale for the pardon power was partly articulated by Alexander Hamilton in the Federalist Papers, when he wrote in No. 74 that "without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." Particularly in the early days when so many Americans were concerned about the immense amount of power within a centralized government, the pardon existed to provide a system of checks and balances—an "out" in the no need to explain view of the elected president.

The U.S. Supreme Court clarified presidential pardon power in an 1866 case, Ex Parte Garland. The case dealt with a law passed by the 1865 Congress that effectively disbarred former members of the Confederate government. Augustus Hill Garland, an attorney and a former Confederate senator from Arkansas, subsequently received a controversial pardon from President Andrew Johnson. Garland then came before the court and pleaded that the act of Congress was a bill of attainder and unfairly punished him for a crime for which he had been pardoned, thereby making it unconstitutional. In its opinion, the Supreme Court stated that the pardon power "extends to every offense 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." This meant that due to his pardon, Garland was beyond the reach of the newly minted law and therefore could not be punished for his service in the Confederacy. In essence, the pardon power was made nearly untouchable.

That sentiment, centering on the far-reaching effects of the pardon power, becomes important for the commander-in-chief for multiple reasons. Presidents do not always agree with the decisions made by past administrations or even their own, and that extends to antitrust prosecutions. For example, in 1974, the Gerald Ford administration's Department of Justice sued AT&T for violations of the Sherman Act. The case extended into the Ronald Reagan presidency where there was a bitter fight over whether to continue litigating the case. Over fierce lobbying from his Defense Secretary Caspar Weinberger, Reagan insisted on continuing the case, which led to the break up of AT&T. In still another example, during President Bill Clinton's administration, an antitrust investigation was commenced into Microsoft's vertical integration of its operating system and its software applications that, according to industry rivals at the time, unfairly disadvantaged competing software developers. While Clinton was considered an activist president in most areas, he would go on to say that his Justice Department, headed by his rather independent attorney general, Janet Reno, had no contact with the White House about the case, and Clinton said he only found out about the Microsoft investigation when it was in the papers.

While these are only two examples, there are multiple cases of presidents fielding antitrust issues differently than their predecessors or even those in their own administration. We published a series of articles on presidential powers under the antitrust laws focusing in depth on such historic case studies. Examples such as these make the pardon power of any president that more profound in scope. A pardon could allow a president to speak on an antitrust matter without ever having to wade into the intricacies of the American legal system—there is no need to consult the Justice Department, the Federal Trade Commission (FTC) or any other governmental agency in order to act. The pardon exists as a tool that can only be invoked and exercised by the president even though it only applies to federal, not state, cases, and only individuals, not corporations, can be pardoned; although the thinking behind cases like Citizens United and Burwell v. Hobby Lobby could change that. As such, it can also be used by a president to express an opinion or foreshadow future policies, not only grant justice.

In even other examples, the pardon can be a creative political tool. For example, when Ford took office, he pardoned more than 50,000 draft resisters. He argued that the move was necessary to move past the ire of the preceding years' Nixon administration's scandals, from an extremely unpopular war to the outrage over Watergate. When Jimmy Carter became president in 1976 he pardoned even more draft resisters—over 200,000—in still another bid to make up for the handling of the Vietnam War. Just as the pardon can be used as a symbol of presidential preference or policy, it can also be used as a political tool and send a strong message.

In this present instance, however, the Jeffries' pardon by Trump, granted nearly 70 years after the fact, stands out as odd. Why choose to pardon, without any explanation, an antitrust violator who was given the Presidential Medal of Merit—and why now? While Jeffries by all accounts was an integral part of the war effort, is there another policy or political message being sent through this pardon? It is puzzling and somewhat paradoxical considering the present aggressive antitrust stance of the Trump DOJ.

The pardon power is an intriguing tool at any president's disposal, and its historic use recently for antitrust violators opens up another avenue of potential remedy to consider before or after the fact. While it does not apply to corporations, and is hard to get, for individuals, who are subject these days to 10-year jail sentences under the law for antitrust violations, the presidential pardon may be something to think about as a last hurrah.

Stay tuned.

Carl W. Hittinger is a senior partner and serves as BakerHostetler's antitrust and competition practice national team leader and is the litigation group coordinator for the firm's Philadelphia office. He concentrates his practice on complex commercial and civil rights trial and appellate litigation, with a particular emphasis on antitrust and unfair competition matters, including class actions. His experience also includes a judicial clerkship with Chief Judge Emeritus Louis C. Bechtle of the U.S. District Court for the Eastern District of Pennsylvania. He can be reached at 215-564-2898 or [email protected].

Jeanne-Michele Mariani is an associate in the firm's Philadelphia office in its litigation group. Her practice focuses on complex commercial and antitrust litigation matters. Her experience also includes a judicial clerkship with Judge Thomas I. Vanaskie of the U.S. Court of Appeals for the Third Circuit. She can be reached at 215-564-1509 or [email protected].