In August 2017, President Trump pardoned former Arizona sheriff Joe Arpaio after he was convicted of criminal contempt regarding his hardline tactics, including illegal profiling, in targeting undocumented immigrants. Trump did not consult with the Department of Justice before announcing his decision, unlike his predecessors. Yet, the Constitution does not require any such consultation. So how powerful is the presidential pardon, and how has it evolved over time?

Constitutional law expert and Professor Bernadette Meyler, JD ‘03 joins Stanford Legal co-hosts Pam Karlan and Joe Bankman to discuss the presidential pardon through a fascinating lens: 17th-century drama. Professor Meyler’s recent book, Theaters of Pardoning, investigates how the representation of pardoning tracks changing conceptions of sovereignty within the plays and politics of 17th-century England, such as the famous Gunpowder Plot. As a historian and legal expert holding a doctorate in English, Meyler says, “The field of law and literature has had a lot of different incarnations, but I would say that my version of it kind of looks at the way in which audiences and actors bring concepts from cultural spheres into legal and political arenas and back again.”

Meyler further breaks down the nuances of presidential pardons, amnesty, and a concept known in 17th- and 18th-century England as “acts of oblivion.” In relation to Arpaio’s case, Meyler says, “Former sheriff Arpaio wants for his entire record to be expunged. Now generally that requires an additional procedure. The judge is in charge of whether someone’s conviction would be expunged. Now I think that gets back to Joe’s question about the difference between pardon and amnesty. Amnesty even by its very derivation entails a certain amount of forgetting.” Meyler relates this concept back to the deep history of acts of oblivion, which she explains to be a process in which courts would “tell people that they not only had to allow someone to go free if they had committed a crime, but also that they had to forget the very underlying acts.”

Today, presidential pardon power has transcended far beyond what the Framers envisioned, pushing questions on how constitutional mechanisms may actually play out in practice. Meyler says, “One of the restraints on pardoning that the founders thought would be powerful was the power of impeachment. So they thought that if the president abused the pardon power, he would just be impeached. Now that hasn’t worked out so well.”

Despite these challenges, analyzing the presidential pardon across history and countries has allowed scholars to contemplate and scrutinize executive actions today. “It’s just really interesting to see how an insight into another culture, another part of history, gives us insight into where we are today,” says Karlan.

—Sarah Lee