The Presidential Pardon Power, from Biden and Trump to Ancient Kings

Bernie Meyler: I actually would have been more comfortable with him just pardoning his son than with the justification that he put forward, which I think didn’t exactly talk about the future or 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.

Pam Karlan: This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. I’m Pam Karlan, along with Rich Ford. Please subscribe or follow this feed on your favorite podcast app. That way, you’ll have access to all our new episodes as soon as they’re available.

Today, our guest is our colleague, Bernie Meyler. Bernie is a scholar of British and American constitutional law and of law and the humanities. And she is also the author of a book, Theaters of Pardoning, published by Cornell University Press in 2019, that goes through the long history of pardoning to show that the representations of pardoning over time reflect the change in conceptions of sovereignty that affected 17th century England, that also, I think, Give us a little bit of a sense of where we are today with the pardoning power.

And of course, we’ve just seen an extraordinary use of the pardoning power by President Joe Biden, who pardoned his son Hunter. So thanks so much for coming on the show, Bernie.

Bernie Meyler: I’m thrilled to be here. Thank you so much for having me.

Rich Ford: Bernie, maybe we can just start out by talking about some of the history of pardoning, how you’ve seen pardoning evolve over the years, both in the American context, but also in your book, you talk about the use of pardoning much further back in English history.

So give us some idea of why executives have been given the pardoning power, how they’ve used it, and what it’s meant in these differing historical contexts.

Bernie Meyler: Back in England, the pardon power was a relic of the divine right of the king. So it was thought to be a manifestation of the fact that he could have a similar kind of mercy to God.

So whereas the king was only on earth and God was supposed to be in heaven, they were able to similarly spare people either from death here or from perpetual damnation. The idea was that the mercy of the king was analogous to that of God. Now even at that point, though, there were different Kinds of pardons that were much more routine.

So there was a kind of 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 in cases of murder to that seem more like manslaughter. And 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.

Now, fast forward to the American context, and there was a lot of ambivalence about including a pardon power. For the president at the time of the founding someone as prominent as 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 and that once punishments became less severe and more regulated by the severity of the crime and the necessary consequences that pardoning would no longer be useful, but that argument didn’t win out at the convention.

And really, 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 either because I think they thought of pardon as potentially an emergency power that the president could use to quell rebellions that were in the process of happening or about to happen.

And that kind of played out with the whiskey rebellion fairly on in the history of the American Republic. And George Washington issued pardons, which helped to bring the whiskey rebellion to a close. So that’s the, pre founding era to founding era. Scope of pardons. Now, I think one thing that has been interesting in recent years is that President Trump really revived what I think of as a more early modern conception of pardoning where he used it as a way of exercising a power above the law.

And in particular to critique the legal regime by issuing certain pardons that were undermining particular laws or policies that he felt were not appropriate.

Rich Ford: That’s fascinating. So we have a number of different conceptions of the pardoning power. One devolved from the divine right of kings, one that seems like an exercise of judicial discretion.

But then in the American context, yet another rationale, which had to do with extraordinary powers to do things like quell dissent, But formally speaking, the president can use the pardon power for any reason. So now we see President Trump, for instance, using it in order to or effectively critique judicial decisions that he doesn’t agree with.

Could you tell us a little bit about the various types of pardoning power and the restrictions on, pardon? So the president’s pardoning power is broad, but it’s not absolute. For instance, he can’t pardon state crimes.

Bernie Meyler: Absolutely. So the President is given the power to pardon. 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 power, the President is Commander in Chief, but Congress has the ability to fund the Army. So I think, unlike that there’s no Pardon power given to the president and then a restriction on it placed by in, in the hands of Congress.

A lot of other foreign constitutions have a distinction between or historically had a distinction between pardon and amnesty, where a legislature would be entitled to grant amnesty, but the president or prime minister would pardon. So what I want to say with that is basically the pardon power can include amnesty, which could be, very large large scale grants of pardons.

And that’s what happened under President Johnson after the Civil War. But as you mentioned, federal pardons can’t extend to state crime. So that’s been one way around. A federal pardon can be to engage in a state prosecution for similar underlying offenses that would not be covered by a federal pardon.

Also, there are, under the broad pardon power, all right. There doesn’t have to be an entire, a full pardon. There could be a commutation of a sentence and there are other forms of exercises of clemency. Remission of fine, sort of restitution or reprieves. So there are more limited exercises of the power that can, not be so comprehensive as a full pardon.

Pam Karlan: For a pardon, it can be a pardon 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 crime, federal crimes, that he might have committed, essentially during the limitations period that runs for every federal offense except for homicide.

Can you give us a little bit of a sense of, 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 says any and all crimes during the following time period.

Bernie Meyler: Absolutely. I, this 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 the understanding that their understanding that receiving a pardon or accepting a pardon would imply that they are guilty, guilt was affirmed. So I think that pardons do have to be accepted in order to be effective. And sometimes, at least, 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.

So that is sort of the underlying logic of a lot of amnesties and so I think that logic has been imported into these kinds of pardons that are based on time period rather than based on particular underlying facts. And I think that one reason why those maybe seem particularly troubling or problematic is that at least if there’s a pardon either after conviction or after an indictment, there’s some knowledge of kind of what happened So it’s not that the historical record is blank Whereas if you have a pardon of any events that or anything someone committed during a particular time period that would deter any investigation And Presumably of the underlying facts.

And so you might not actually even be able to establish what actually happened, through any judicial mechanism.

Rich Ford: I’m curious, 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 and how we should think about. Some of the pardons that we’re seeing in the present day that might be seen either as a critique of the judicial system or, for instance, in the case of the Hunter Biden critique, or pardon, excuse me, a a distrust of the next administration.

I think what a lot of people see is that Joe Biden doesn’t trust that Donald Trump won’t maliciously persecute his family. And so he’s insulating Hunter from that. In advance.

Bernie Meyler: Yes, absolutely. So I would say that the two most controversial sets of pardons are have been of kind 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.

And I think everyone has brought up in the past Clinton’s pardon of financier Mark Rich, which was a last minute pardon. That’s the other factor that sometimes last minute pardons that are after the president is basically a lame duck have been thought to be particularly You know, unaccountable, but the Mark 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 Kushner’s father. So he pardoned people who were close associates. Kim Kardashian had advocated for some pardons. And so he tended to really pardon only those who he either knew personally or were somehow salient to him through political contacts.

So that was one critique of his pardons. But I think the 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, which he, seemed to be taking a stand against the legal regime that was prohibiting those forms of corruption.

Thinking about Biden’s pardon in that context. In between those two categories, obviously, it’s a pardon of his son. And I guess what I found a bit troubling about the pardon was the justification. So I actually would have been more comfortable with him just pardoning his son.

Then with the justification that he put forward, which I think didn’t exactly talk about the future or 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. And to me I felt that it was a sort of 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 were, even in this particular instance that there was a problem with the justice system, but then, how are we to say that there isn’t a broader problem if this is the thing that’s most visible to him because it’s his son.

But, how do we know that there aren’t many more instances of miscarriages of justice if this is, not just the tip of the iceberg.

Pam Karlan: How often is it that a president makes the kind of statement that President Biden make when giving a pardon? Because an awful lot of the pardons, it just seems What you get is the pardon statement itself, which just says I’m pardoning this person for x and y and z.

Is this unusual to see this kind of statement accompanying a pardon?

Bernie Meyler: I think it is. And Trump was someone who did that before and did it in order to highlight why, he didn’t agree with the particular, say, legal regime that the person was convicted under. In a way, I see this statement about the pardon as having a similarity to what Trump had, inaugurated or re inaugurated in terms of statements about why he was pardoning.

And I think that There’s 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. So those are the kinds of pardons that happen through the work of the Office of the Pardon Attorney and that are people who, arguably have been subject to a miscarriage in the criminal justice system and have their cases have been brought forward by an administrative process and they’re recommend it for pardon by the Office of the Pardon Attorney and usually in those cases.

There are very few cases in which there’s really a statement about that I would say that one counterexample about you know a regular person who there has been a statement about was when Trump pardoned one sort of regular person. And then, held a news conference about that and made a statement.

But in general, those pardons have really just been much more routine and not subject to statements.

Rich Ford: Bernie, so we’re talking a lot about some pretty high-profile pardons that have a special salience given how polarized our politics are. So all of these can be put into the context of a polarized politics and maybe take on outsize importance.

How often is the pardon power actually exercised?

Bernie Meyler: It’s a great question, Rich, and I would point out that Joe Biden has so far only issued pardons in the double digits. 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 really 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, that 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, another example is if there was a law passed, years ago that we no longer agree with, we think was too harsh, that, drug laws are some examples of that that pardons can remove the penalty or the, continued jail time from people in those who’ve been convicted under those laws.

So those are all sorts of kinds of pardons that could be used more that are not being used.

Rich Ford: Yeah, that’s interesting. So we could think about a few categories who were worried about abuses of the pardon power where it’s a family member or someone who’s close to the president in some way getting a pardon.

And yet there are a lot of people who perhaps deserve pardons who don’t have that access. I could think about things like drug, federal drug laws, where we may have changed our views about what deserves punishment. And so you could imagine some fairly broad pardons under laws like that.

Bernie Meyler: Absolutely.

Yeah. And I think that would be quite reasonable. I think one of the reasons we don’t have that happening is because there’s a, an impasse in the system that leads to pardoning, right? The office of the pardon attorney is supposed to suggest candidates, but oftentimes in recent administrations, that’s been sidestepped.

I think there are other processes that are used at the state level that have. Interesting, potential one that I find most intriguing is in Michigan. For a while, there was a kind of citizen panel that would review potential cases for pardoning and then make recommendations. So I think that part of the problem is that there is a feeling of a kind of lack of democratic legitimacy of the pardon power, but infusing more democratic mechanisms into the process might make people feel more comfortable with a broader exercise of the power.

Rich Ford: Yeah, that’s interesting. To what extent do you think public opinion ought to affect the pardoning power, either directly or indirectly?

Bernie Meyler: I think it should affect the pardoning power and I think it, it does. I think that I, to some extent, these very prominent pardons that people feel have a whiff of corruption I do think that 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: So 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.

Bernie Meyler: Yeah, I think that there, there are still reasons to think of the original understanding of using the pardon as a way to deter violence that’s ongoing or 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: So 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 January 6th people convicted for their actions at the Capitol on January 6th?

Bernie Meyler: Yes, absolutely. Because I, with Washington, it was, Washington 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. So I think…

Pam Karlan: But they rebelled against the government. He was still running on January 6th.

Right?

Bernie Meyler: Yes. Although he participated in their rally until a particular point, right? He was himself, engaged with their cause and their, 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.

Now, I think there’s a way in which, you could say that actually it’s fine to pardon the January 6th, the insurrectionists, if we want to call them that, or 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 for Trump, because it’s a way of extending an olive branch, potentially. So I think there are potentially similar rationales for doing that, but I would see Trump and Washington as differently situated with respect to these two different events.

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 a way in order to make an ideological point either used against the past administration or in order to defend people who were hurt.

Perhaps convicted of crimes that were on my side. And quite the opposite of showing mercy. It’s more like building up support for my team.

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

Yeah, I think that may continue going forward.

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

Bernie Meyler: Yeah, so I think there have been some constitutional amendments suggested. I’m not, 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 Yeah. Yeah. Administrative structure that is supporting the president’s pardon power in a way that would make it more transparent, more democratic in nature. I mentioned earlier the use of kind 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 maybe 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 her.

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.

Pam Karlan: I’m sure we’re going to see a whole bunch more pardons coming down the pike, and I hope you’ll come back to talk to us about those as well.

Thanks so much to our guest, Bernie Meyler. This is Stanford Legal. If you’re enjoying the show, tell a friend and please leave us a rating or review on your favorite podcast app. It’ll help us to improve the show and it’ll get word out. I’m Pam Karlan, along with Rich Ford. See you next time.