On a recent episode of Stanford Legal, Stanford Law School Professor Bernie Meyler, JD ’03, joined podcast co-hosts professors Pamela Karlan and Richard Thompson Ford to discuss one of the hottest topics of the day: presidential pardons. A scholar of British and American constitutional law, Meyler is author of the 2019 book Theaters of Pardoning (Cornell University Press), which traces the roots of contemporary understandings of pardoning to tragicomic “theaters of pardoning” in the drama and politics of 17th-century England.

The following is an edited and shortened version of the full podcast transcript, which can be found here.

Rich Ford: Can you discuss the history of pardoning, how you’ve seen pardoning evolve over the years, not just in the American context, but as you discuss in your book, the use of pardoning in English history?

In England, the pardon power was a relic of the divine right of the kings. It was thought to be a manifestation of the fact that the mercy of the king was analogous to that of God. Even at that point, though, there were different kinds of pardons. There was an extraordinary pardon that the king or the monarch could wield, but there were also very routine kinds of pardons like those that were recommended by judges–along the lines of judicial discretion–in cases of murder, for example, that seemed more like manslaughter. Often those kinds of pardons were used to mitigate a very harsh system of punishment where the punishment for a lot of crimes was the death penalty.

In the American context, there was a lot of ambivalence about including in the Constitution a pardon power for the president at the time of the founding. Thomas Jefferson was quite dubious about the role of pardoning in any democracy and thought that it was really only appropriate in a monarchical regime. But that argument didn’t win out at the convention and the pardon power that was given to the president is quite extensive under Article Two. The idea of rejecting pardons in cases of treason was even not accepted by the members of the founding generation because I think they thought of the pardon power as potentially an emergency power that the president could use to quell rebellions that were in the process of happening or about to happen. That played out with the Whiskey Rebellion where George Washington issued pardons that helped end the rebellion. 

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Rich Ford: Could you tell us more about the various types of pardoning powers and the restrictions? The president’s pardoning power is broad, but it’s not absolute. For instance, he can’t pardon state crimes, correct?

Yes, the president is given the power to pardon and interestingly, Congress doesn’t have an explicit role. So, it’s not like some of the powers that are divided between the president and Congress under the Constitution. If we think about the war powers, for example, the president is commander in chief, but Congress has the ability to fund the Army. But with pardon power, there is no restriction on it placed on it by Congress.

A lot of other foreign constitutions have a distinction between pardon and amnesty, where a legislature would be entitled to grant amnesty, but the president or prime minister would pardon. But as you mentioned, federal pardons can’t extend to state crime. So that’s been one way for getting around the possibility of a federal pardon: engage in a state prosecution for similar underlying offenses that would not be covered by a federal pardon.

Under the broad pardon power, though, the president there doesn’t have to issue an entire, full pardon. There could be a commutation of a sentence and other  exercises of clemency. Remission of fines, restitution or reprieves, for example.  

Pam Karlan:  A pardon can be for a particular crime of which the person’s already been convicted, but one of the interesting things with the most recent pardon in the news, the pardon of Hunter Biden, is it’s not a pardon for a particular crime, it’s a pardon for any and all federal crimes that he might have committed during the limitations period that runs for every federal offense, except for homicide.  If someone accepts a pardon, are they admitting they committed a crime? How does a president decide whether he’s going to pardon people for a particular crime, or he’s going to just issue a pardon, like for example, the one that, Gerald Ford issued for Nixon, which is like the one that Joe Biden issued for Hunter, that just covers any and all crimes during a time period?

The question you have about whether accepting a pardon implies guilt is very interesting because that has been previously thought to be an issue. Someone, in fact, did accept, in the past, the death penalty rather than accepting a pardon because of their understanding that receiving a pardon or accepting a pardon would imply that they are guilty.So Pardons do have to be accepted in order to be effective. There’s no legal reason to say that accepting a pardon means that someone is guilty. But I think that there is some implication of that. And certainly some recipients of pardons have felt that way in the past.

Now, I think that the similarity to the Ford and Nixon situation, where there’s a pardon of all and any crimes committed during a particular time period, to me seems much more like amnesty traditionally has been conceived, which is just really not investigating the kind of underlying facts or events, but rather saying, “okay, we’re drawing this line in the sand and from here on forward, we’re not going to really address whatever happened in the past.”

That is the underlying logic of a lot of amnesties and that logic has been imported into these kinds of pardons that are based on time period rather than based on particular underlying facts. I think that one reason why those seem particularly troubling or problematic. 

Rich Ford: You mentioned that the rationales for pardoning could include a critique of the judicial system, for instance—that we might see some of Donald Trump’s pardons as taking on that form. I wonder if you could talk a little bit about some of the more controversial pardons that have happened.  

Some of the most controversial pardons have been of relatives or close personal contacts, and also of people who were convicted under statutes or procedures that are then called into question by the person engaging in the pardon. I think everyone has brought up Clinton’s pardon of financier Marc Rich, which was a last-minute pardon—often last-minute pardons, after the president is a lame duck, have been thought to be particularly unaccountable, and the Marc Rich pardon is one that was thought of as problematic. Clinton pardoned his half brother as well. 

Trump engaged in a number of pardons. He pardoned [Jared] Kushner’s father. He pardoned people who were close associates. Kim Kardashian advocated for some pardons. And so he tended to pardon only those who he either knew personally or were somehow salient to him through political contacts. That was one critique of his pardons. But to my mind, the more troubling aspect of his pardons generally were that he would use them to take a stand against particular legal regimes. For example, he would tend to pardon people who were convicted of crimes of government corruption, and he seemed to be taking a stand against the legal regime that was prohibiting those forms of corruption.

With Biden’s pardon, what I found troubling was the justification. I actually would have been more comfortable with him just pardoning his son than with the justification that he put forward, which didn’t exactly talk about the future possibility of prosecution, but rather said that there had been injustice in the way that Hunter Biden was targeted and convicted during Biden’s own administration. I felt that it was a troubling critique of things that had happened during his own administration, obviously with a special prosecutor at the helm, but it felt a bit like he was criticizing something that had happened on his own watch, and then also suggesting that there was a problem with the justice system.

Pam Karlan: How often is it that a president makes the kind of statement that President Biden made when giving a pardon? Is it unusual to see this kind of statement accompanying a pardon?

I think it is. Trump did that before and did it in order to highlight why he didn’t agree with the particular legal regime that the person was convicted under. 

There are also a whole set of pardons that often happen that are more routine, more administrative, but they haven’t happened as much under the Biden administration. Those are the kinds of pardons that happen through the Office of the Pardon Attorney and involve people who arguably have been subject of a miscarriage of justice in the criminal system. Their cases are brought forward by an administrative process and they’re recommended for pardon by the Office of the Pardon Attorney.  In those cases, there are rarely statements about the pardon. 

Rich Ford: How often is the pardon power actually exercised?

Joe Biden has so far only issued pardons in the double digits [following the podcast, Biden commuted the sentences of approximately 1,500 people who were released from prison and placed on home confinement during the coronavirus pandemic and pardoning 39 others convicted of nonviolent crimes]. It’s an incredibly small number of pardons and even Donald Trump, whose pardon exercise of the pardon power was so widely discussed, only issued a couple hundred.

These federal pardons, while they’re discussed a lot and they are very high profile, are not having a huge impact on the criminal justice system, and some might say that’s a problem, actually. The problem isn’t the overuse of the pardon power, but the underuse to either correct injustices or to deal with the fact that people have reformed during the course of serving their sentence, or are serving time under laws, for example certain drug laws, that we now think are too harsh. 

Rich Ford: To what extent do you think public opinion ought to affect the pardoning power, either directly or indirectly?

I think it should affect the pardoning power, and I think it does. I think that to some extent, these very prominent pardons that people feel have a whiff of corruption—I do think there’s a reason why we should listen to public opinion about that. However, on the converse side, part of why presidents aren’t engaging in much more widespread pardoning in other contexts is that they’re worried about the repercussions. What if someone goes on to reoffend? And then they have pardoned someone who turns out to commit another crime, maybe a crime of violence, and then they’re going to suffer the political consequences. I think that if there were some way of making the president less solely responsible for the implications of the pardon, that would improve the use of the pardon power more generally.

Pam Karlan: It seems like what you’re now talking about is a very different thing than the historical pardon, which was really about the divine right of the king. And you’re saying, if we want to have a pardoning power in a democracy, that shouldn’t be what the pardon power is about at all.

I think that there are still reasons to think of the original understanding of using the pardon as a way to deter violence that’s ongoing or to deter rebellion. I think there might be a particular continued usefulness of that, but there’s a whole other understanding of pardoning that we should also integrate into our system that isn’t well served by the way that the pardon power is currently used, and that’s the more routine pardons, the ones which I think have historically been used  on the state level as well in order to mitigate sentences and also express a popular judgment about the inadequacies of particular laws or the over harshness of particular laws.

Pam Karlan: You alluded earlier to George Washington pardoning a bunch of the people who’d been convicted during the Whiskey Rebellion. Do you see a difference between that and President-elect Trump’s promise to pardon a bunch of the people convicted for their actions at the Capitol on January 6th?

Yes, absolutely. In the case of Washington, it was Washington who was the figure of a government that was being rebelled against. Whereas Trump pardoning the January 6th individuals would be pardoning people who he has allied himself with….

Pam Karlan: But they rebelled against the government that he was still running on January 6th, right? 

Yes. Although he was engaged with their cause and their acts were in his name, at least in part. So I think there’s a much closer connection there than between Washington and the people involved in the Whiskey Rebellion.

I think there’s a way in which you could say that actually it’s fine to pardon the people involved in January 6th because of a desire for peace going forward, right? Or if it could cause less strife in the polity going forward, that might be a similar rationale to Washington’s pardons in the Whiskey Rebellion context. I could see maybe even more reason why Biden might have pardoned them than Trump, because it’s a way of extending an olive branch.  

Rich Ford: That raises maybe another question about the future, given the polarization in our politics: Do you expect to see a more injudicious use of the pardoning power because people are now using it in order to make an ideological point, either used against the past administration or in order to defend people who were perhaps convicted of crimes that were on “my” side?

Yes, I think that seems likely that it’s not as much an exercise of extending an olive branch to an enemy as bolstering solidarity with people who are already perceived as on the same team.

Rich Ford: Any thoughts about reform? Are there things that we could do to improve the pardoning power in an ideal world?

There have been some constitutional amendments suggested. In addition to the fact that it’s so hard to get a constitutional amendment ratified, I’m not a huge proponent of those amendments. I think we could change the administrative structure that is supporting the president’s pardon power in a way that would make it more transparent, more democratic in nature. For example the use of citizens in the pardon process for a while in Michigan. I think that kind of bringing ordinary people into the process and allowing them to talk about their experience, talk about what they see in the criminal justice system, would both bring a bit more transparency to the ordinary American about how the federal justice system is working and also perhaps bolster a sense of popular support for pardons that are not these kind of exceptional pardons, or pardons of friends or allies or relatives, and that are more pardons of people who either have been done some kind of injustice by the system or who have reformed.

Bernadette Meyler, JD ’03, is a scholar of British and American constitutional law and of law and the humanities.  She is also a 2020 Guggenheim Fellow in Constitutional Studies.  Her research and teaching bring together the sometimes surprisingly divided fields of legal history and law and literature.  They also examine the long history of constitutionalism, reaching back into the English common law ancestry of the U.S. Constitution.