Welcome to tonight’s constitutional conversation. I’m very happy to introduce our guest who’s out from University of Virginia, and as well as the his interlocutor, familiar to all of us, my colleague here, a professor of law here Bernie Meyler. Our guest is Sai Prakash who is the James Monroe Professor of Law at University of Virginia.

I wish my chair were named after a disting- like the pres- the President Pr- who was pr- essentially elected unanimously, probably the most popular and president in American history. That- that’s quite an honor. Sai was an undergraduate here at Stanford. When he he… For some reason, he went away to like to a law school in Connecticut. Is that where it was? I think it’s in Connecticut. I forget the name of it. After which, he he clerked for Judge Larry Silberman and for Justice Clarence Thomas, and has been in legal academia pretty much ever since. He is one of the nation’s leading experts and scholars on the presidency, separation of powers in general, but es- and espe- especially the presidency.

One book is entitled Imperial from the Beginning, and another entitled The Living Presidency, and he’s here talking about his most recent book, which is on the pardon power which is as we know, not a very controversial topic even today. After tonight’s event, he’s going to be signing books out- outside for a bit. Come and get them while they’re hot.

So the way this is going to go is he’s going to speak for about 10 minutes on the book, and then Professor Meyler is going to give him a series of questions to to shape the conversation, following which we will open things up to you for all of your questions and comments. Please join me in welcoming Sai Prakash.
Thank you so much for coming today, and thank you, Michael, for hosting me and for that very gracious introduction. I’ve long been an admirer of Michael’s scholarship, and it’s just a thrill to be introduced by him. So I’m just gonna speak for ten minutes on this book. It’s a very wonderful and short book, and operators are standing by.

You should definitely pick up a copy on the way out. And it emerged from the events on January nineteenth and twentieth of last year. President Biden issued a series of pardons to families and other folks, and then President Trump came in and issued a larger series of pardons to the January Sixers.

And I was working on another book project, and my editor said, “I think you should not do that project now, and you should write this.” And so that’s how the book was… that’s how, that’s the genesis of the book. And the b-book explains why, different forms of government have- A pardon power.

In the 18th century, there’s a thought that the criminal law is too harsh. The criminal law can’t take into account all the factors that would be useful in deciding a fit punishment for the criminal, right? You just can’t list all the factors in the statute. And then there’s a thought that every once in a while there’s a season of– there are seasons of rebellion.

English history is littered with rebellions, and there’s a need to be able to offer a pardon to the rebels in order to get them to lay down their arms. And so there’s multiple reasons why every society has had some kind of clemency power. And, we had it before the Constitution. The Continental Congress delegated a pardon authority to George Washington as commander-in-chief of the Continental Army.

The states had various pardon authorities far more constrained than the US Constitution is in terms of giving it to the executive. But when they get to the Philadelphia Convention, they decide to issue this pardon power, to give the pardon power to the president without constraint. And it’s a controversial choice in the convention, but even more so outside.

Ma- Hamilton himself, who was a, a advocate for a strong executive, doesn’t think the president should have the authority with respect to treason. At least that’s what’s in his plan that he presents before the Philadelphia Convention. But it’s sent to the states as it is in the Constitution, the president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

And it’s a… there’s no checks on it. The Senate doesn’t participate. The, there are, limits to it in the sense it’s gotta be an offense against the United States and not an individual state. And like in England, the president can’t stop an impeachment or stop the effects of an impeachment conviction in the Senate.
But otherwise it’s amazingly broad, and it’s criticized by the Anti-Federalists as being too broad. Some of them even say we worry that the president will get his minions to try to overthrow the Constitution and the government, and then he will issue them pardons, and we’ll never know about his involvement in this conspiracy.

So they have dark, they tell dark tales about what might come to pass with this pardon power. And Hamilton in The Federalist Papers doesn’t deny that it might be abused, but he just says it’s better to have it unfettered than to have it fettered because again, rebels won’t lay down their arms if they think they have to go to Congress, a multi-member institution, in order to secure a pardon.

It’s just better to leave it unfettered. That’s the argument he makes, and of course, he’s gotta make the best of it. He doesn’t deny that there are some issues with it. And the Constitution is an all or nothing proposition or thought to be such, and they pass it, right? They pass the whole Constitution, including this pardon power.

I’ve got a chapter on the Washington administration, and I basically describe Washington as the ideal pardoner-in-chief, someone who is very methodical and very careful and very sagacious in its use. He always, receives the pardon petition from the prisoner. He then asks for the district attorney’s opinion about whether the pardon ought to issue.

He then asks the judge for the judge’s opinion as to whether it should issue. And then he might ask members of his cabinet. On occasion, he asked John Jay, the sitting chief justice, for his opinion. And then after taking all that information into account, he would issue a pardon or not, and the pardon would always list reasons for why he was exercising the pardon, right?

Because he wanted to make it clear that he was issuing the pardon in a responsible way after taking into account all the factors that he thought were relevant. So he might say that the person had been punished enough. He might say that the person didn’t mean to violate the law. He might say that the person had served admirably during the Revolutionary War.

And then he would, list two or three reasons and then sometimes say, “And for other reasons known to me.” But the point is he believes it’s really necessary to justify what he’s doing the pardon power doesn’t go exactly off the rails after Washington. Both of his successors are enmeshed in particular controversies with respect to the pardon power.

John Adams faces a rebellion in Pennsylvania called the Fries’ Rebellion, which is a rebellion against a window tax enacted by Congress, and the rebels are charged with treason. John Adams pardons them all, an unconditional pardon, and his ground for that pardon is that they were overcharged.

They should have been charged with riot, not treason. His co– his co-partisans, co-Federalists basically say that he’s trying to secure votes in Pennsylvania through the issuance of these pardons. They think that he’s issuing the pardon for political reasons, and I think it’s the first, it’s the first claim that the president’s using the pardon pen to advance his personal, in this case, his political interest.

And it turns out that John Adams does get more electoral votes in Pennsylvania in the 1800 election than he does in 1796 election, and he had to have known that Pennsylvanians wanted these folks pardoned. Is that why he did it? It’s hard to say, but it’s the first sort of credible claim that might be what’s motivating him The next president’s emboil- embroiled in his own controversy.

There’s a pressman who’s been critical of The Federalist for years, and he’s charged with violating the Sedition Act, an act passed during the Adams administration. And Thomas Jefferson comes into office and pardons all those who’ve been found guilty of violating the Sedition Act.

Jefferson’s public stance is the Sedition Act is unconstitutional because it violates the freedom of the press clause. But what’s unknown to people at the time is that Jefferson has been subsidizing this critic of his enemies, The Federalists, for years. He’s been giving him money on the side. And eventually, this comes out.

James Callender turns on Jefferson because James Callender wanted the fines that he had paid back and had taken months for him to get those fines back as a result of the pardon, A. B, he wanted to be the postmaster of Richmond and Jefferson did not did not did not oblige him. And so he was upset that he had been denied this post.

And so he turned on Jefferson with a vengeance, and he first disclosed that I… jefferson’s been paying me for years. The implication being that Jefferson has been paying me for years in order to attack Jefferson’s enemies, Adams, Hamilton, and at times Washington. And then Callender goes on to say Jefferson’s having an affair with Sally Hemings, and Jefferson’s had an affair with a neighbor in Monticello or, in Charlottesville.

So this causes a big stir against Jefferson. Much later, Abigail Adams writes to Jefferson and says, “I can’t believe that you pardoned this fellow who, was terrible to my husband.” And Jefferson’s response is, “I did it because of the Sedition Act. The Sedition Act was unconstitutional.”

And Abigail Adams’ response is, “No one knows… No one I know believes that was your reason, right? You did this because he was your attack dog.” And Jefferson denied it, but Jefferson said, “History will have to judge the reasons behind this pardon, whether it was political or whether it was sincerely based on the conviction that the Sedition Act was unconstitutional.”

Again, it’s very hard to say what’s going on there. If you go forward to later pardons or controversial pardons, let me just list a couple of them. Andrew Johnson issues an amnesty on the first day of the Democratic Convention in New York, and he’s, he does so because he’s told that this will help him secure the nomination.

He’s told that if the amnesty is well-received. He doesn’t secure the nomination but I think it’s clearly designed to help him secure the nomination. So maybe more so than Jefferson and Adams it’s a political sort of pardon. And then of course, we know other events like the Ford pardon is, of Nixon is considered to be political at least at the time by, by many Americans.

I think history has been kinder to Ford since then. You are of course perhaps aware of the pardons by George H.W. Bush in the Iran-Contra affair and the claim of the independent counsel that the cover-up of Iran-Contra is complete as a result of the pardons issued by George H.W. Bush. And then of course there are the Bill Clinton pardons of Mark Rich and people that might be useful to Hillary Clinton’s campaign for Senate in New York.

And so I talk about all those sort of controversial pardons and the claim that, that politics is driving the pardons. But the last couple of chapters of the book are focused on Biden and Trump, and I think, we’re seeing the politicization of the pardon power in ways that would have been unimaginable generations or decades or centuries ago.

And I think we’re in the midst of what I call a pardon dystopia, and I discuss this in the chapter. And I’ll just list four factors before I clam up and we get the benefit of Professor Myler’s questions. So I think what we’re seeing now is the promise of pardons during campaigns. Presidents have long made promises to help them secure the office, to help them secure the nomination.

It turns out most of their promises are not things they can actually do because they make promises about things that are within the purview of Congress. But it… when you make a promise to pardon someone, that is something the president can do unilaterally. I think Joe Biden was the first to promise a pardon in his campaign for president.

This was in two thousand and sixteen. He promised a pardon for marijuana offenders. And I think this was partly designed to secure the votes of young people many of whom have perhaps experimented with marijuana. He didn’t issue the pardon until two thousand and eighteen, right before the midterm election, and he did so on the same day that he issued student debt relief.

And to me, that suggests that perhaps this is a political decision on his part to, to do two things on the same day that might help his party secure votes in the midterms. So I call those campaign, campaign promises to pardon. He wasn’t the last person to do this. President Trump promised to pardon the January sixers, and for many people, that would have been a reason not to vote for him, but for other peoples, it was a reason to vote for him, right?

‘Cause they had loved ones who were gonna be in jail or were in jail for the January sixth events on the Capitol, and you have people saying, “I voted for him because of this. I fully expected that my husband, wife, son, daughter, et cetera, would be set free i- if he won.” And of course, he followed through with that on January twentieth.

The second type of pardon I think we’re seeing for the first time is I… what I would call a policy pardon, and it’s the wholesale nullification of a statute on grounds that the statute itself is problematic in some way, not constitutionally, but just policy-wise Right? And again, I think the marijuana pardons were done on this basis.

Joe Biden thought no one should be in jail for smoking marijuana, and many of us might agree. But to my knowledge, there was no earlier issuance of a pardon on the grounds that the entire statute was misbegotten, right? That it reflected a bad policy for the people of the United States. And you can see the difficulty of this, right?

Because a president might say, “I think the environmental fines are too high. I’m gonna pardon all environmental fines,” or, “I think the tax penalties for filing late are too high. I’m gonna pardon all those offenses.” And it’s not a particularized consideration of whether this person merits mercy or a claim that we need to forgive them in order to reconcile them to this nation, as you would do in a rebellion.
It’s just a claim that this statute is a bad idea, right? I think the third element of this pardon dystopia is cash for clemency. Bill Clinton gave that pardon to Martin– Mark Rich, who was a fugitive from justice, and he was roundly criticized for it by Democrats and Republicans. Donald Trump is now issuing many pardons to people who’ve donated to his campaign and who might yet donate to his presidential library.

And there’s not as much of an outrage this time. It’s becoming normalized. And so I do expect that people will make campaign donations to a president and hope to secure a pardon and hope that the stigma that used to be attached to that is gone. And then the final thing I think that, one might expect to happen going forward is the president might leave office and pardon all of his associates in the administration whom he encouraged to do things that might result in prosecutions going forward, right?

That is to say, rather than, pardoning a bunch of people at the end, that you’ve that have nothing to do with your administration, you might tell people or signal to people, “You do what I tell you to do, and you can expect a pardon when I leave office, and then you won’t be held accountable for this, at least not in a criminal way.”

And I don’t think that’s what Joe Biden was doing when he issued his, some of his pardons on January 19th to some officials that were accused by President Trump of doing various illegal things. I don’t think that’s what he was trying to do, but I suspect that Trump will be issuing these sorts of pardons to some of the members of his administration.

And I think there’s been newspaper articles suggesting that he has told them that he will issue a pardon along these lines. Call it clemency for cronies. There are other elements of our pardon dystopia that are all in the book. You have to read the rest of the book to get to it. But thank you so much.

Great work.

It was a pleasure to read this short and succinct and concise book on the pardon and definitely purchase it afterwards. I have a couple of questions. I– actually, the first one really builds off of what you were saying about politicized and political pardons. And I was struck in your discussion of the Whiskey Rebellion where you talk about this question of whether the Whiskey Rebellion pardons were the first political pardons.

And you say that someone said that Washington’s pardons were political. They certainly were in the sense that considerations of mercy and justice played a role, but they were not political in the crass sense of disfavoring opponents preferring pro partisans or advancing contested policies. So I’m curious if you wanna elaborate a little bit more on these different conceptions of what it means for a pardon to be political because I think in a lot of the book you talk about how it’s not good for the pardon to be a weapon of partisan politics, although you do show that in a way has been present since almost the time of the founding in terms of the Adams and Jefferson administrations too.

But what– how do you think about the good politics of the pardon as opposed to the bad politics of the pardon? Oh, what a wonderful question. I think it’s hard to say when the pardon pen is being politicized, and so I think it’s more clear that’s what’s happening now.

I think it’s less clear that’s what’s hap- that’s what happened in the past. I think I think it’s the volume of what appears to be politicized pardons today that makes it more clear to me. Like I do believe that Johnson, Andrew Johnson, was issuing a clemency or an amnesty in order to secure the Democratic nomination.

He was told that that’s– that would be useful to him and he did what he was told would be… w- that– he did that which would be useful to him. So I do think that’s an early example of it. Adams and Jefferson, I’m not so sure what’s going on. I’d always thought that Jefferson had noble motives for issuing the Sedition Act pardons, but I hadn’t thought about the sort of the partisan angle for doing so, right?
They were basically… He was basically pardoning people that had supported him politically and had attacked his enemies. So there might be mixed motives. But I guess I have a romantic understanding of the pardon power. It’s not supposed to be used to get elected or to reward your allies or to essentially undermine existing statutes by choosing to, essentially rewrite the mandatory minimums, right?

That if you have the view that I think President Biden reflected in the marijuana pardons, there are no mandatory minimums, right? It’s just whatever the president thinks the punishment ought to be, including potentially no punishment at all. And that seems inconsistent with the duty to take care that the laws be faithfully executed.

It seems almost like a s- a temporary suspension of the statute. So I, it’s, it… I don’t wanna say that they’re not considering politics writ large. Obviously, when you’re thinking about how to end the rebellion, it’s, there is a question of politics there. But I, I meant in a more sort of crass sense where you’re primarily thinking about how it affects you rather than what you perceive to be in the interest of the country.

And of course, if you’re thinking about President Biden, you might well think he thinks what’s best for the country is, a marijuana amnesty. I… it’s obviously many people believe that. But I think independent of the politicization point, I guess there’s a concern that this means that any statute that creates a fine or a penalty no longer has that feature if the president can just choose not to enforce any of those penalties by issuing a broad enough clemency.

Great. Yeah. So I wanna also get back to another aspect of the Whiskey Rebellion, and I found your discussion of it really fascinating. For those of you who aren’t familiar with the background of the Whiskey Rebellion it came out of these taxes in western Pennsylvania and involves this uprising at that moment.

And there are various kind of federal offers of pardon during the course of the rebellion. And ultimately, as Professor Prakash notes the first pardon in that instance is given by the governor of Virginia, who was delegated to give it on on behalf of Washington. So this is a very early example of the pardon power being used not by the president, but by someone delegated by the president.

And I think that has some interesting implications today because and Professor Prakash talks later about how actually the January 6th pardons require implementation, say, by the Office of Pardon Attorney or other mass pardons require implementation by someone who’s delegated to do that.

But there’s been this controversy about the autopen and the use of the autopen by Biden and whether that was a legitimate exercise of the pardon power. And to me, it feels like just another example of maybe delegation of pardon. Of course, there’s a claim that maybe he didn’t know that he was delegating the power.

But I’m just curious about y- your thoughts about delegation of the power and whether you think that does speak to the autopen controversy. I think this is a another fascinating question. So Washington tells Governor Lee, “You can promise pardons At least that’s what I’ve been able to find.

But Henry Lee actually issues pardons. And then I don’t find any discussion of Washington or anyone else in the administration telling Governor Lee, “What did you just do? You didn’t have the authority to issue a pardon.” But the, Henry Lee issues a document that says, “I hereby pardon,” “the people that fit the following sort of categories.”

And so it’s the first claim of a delegated pardon power. I think there’s a claim that Lincoln was involved in the delegation of the pardon pen. There’s a claim that Biden’s, the Biden administration was involved ’cause there’s a claim that President Biden set down some broad categories of people that ought to be pardoned, and then other people within the White House kind of filled in who would be pardoned.

I don’t know that to be true, but that was the claim. And then there’s this independent claim that until the president signs it, it’s not a pardon, and the pardon pen, the autopen can’t do the signing, and therefore, I think the claim there by the critics is that, Biden didn’t pardon them, the pardon pen did or someone else did, which is a separate question that I do discuss in the book.
Separate from all that, there are statutes that give other officials authority to grant clemency in certain circumstances. So early on, the treasury secretary is given authority to remit fines, and this is the same kind of authority that the president has under the pardon power. And the Supreme Court, I think about a century later, says it’s totally fine for Congress to vest this authority in the treasury secretary.

Much later, there’s a board of parole created by Congress, and they too are making decisions of the sort that the president can make. My, my tentative view w- is that I think the president can’t delegate the power to pardon unilaterally. I think doing so would basically be creating an office or creating a different office, right?

So if Professor Meyler is the attorney general, and I’d say, “Not only are you gonna do everything the statutes say, Profess- Attorney General Meyler, but you’re also gonna pardon,” I’ve changed the office of attorney general, it seems to me, in a significant way. I don’t think the president can create offices, and I don’t think he can modify them this way.

So I think that’s the problem with the delegation. But if Congress by law authorizes someone else to issue pardons and they’re under the president’s direction, I think that’s fine, and there are many statutes that authorize people to do that which the president can do. But it’s all tentative, and I didn’t work out the, all the details in the book.

But it does raise interesting possibilities. There’s a problem in the clemency process now where the DOJ, Department of Justice, the Office of Pardon Attorney within the Department of Justice, makes recommendations to the White House about clemency. And most of those recommendations don’t get acted upon because the president just doesn’t have the time to go through all these clemency petitions.

But if someone else can actually issue a pardon or some, grant of clemency, commutation or a conditional pardon, et cetera because Congress by law has authorized them to then you don’t need the president’s personal intervention in all these situations. You don’t need his decision, I think, and you don’t need his signature, and the sort of pardon pen issue goes away the autopen issue goes away.

So I think it’s a way to perhaps meet some of the concerns that criminal justice reform advocates have about there being insufficient mercy in the United States. One of the reasons why there might be insufficient mercy at the federal level is the president is overwhelmed with other tasks, and if Congress was was willing to give someone else the pardon pen, and the president obviously was willing to as well, then it would possibly be a solution to that problem.

That’s really interesting. I might come back to Congress a little bit later, but I also wanted to ask you a little bit more about how this fits in with your broader work on executive power. Because you allude a little bit in the book to some of your other work, like in The Living Presidency, and I was struck that you focus for longer on kind of the early precedents for exercise of the pardon power than some of the intermediate period.

And so I was wondering if that’s demonstrating something about your theory of, how executive precedent should be interpreted or does… Is there more weight on early precedent or not, or how do you think about executive branch practice as guiding our interpretation of what the Constitution means in the pardon context?

This is a fair and tough question. I focused on Washington because I’m a great admirer of our first president. I just wanted to see what he did, and, I suppose I was biased. I went into this project thinking that he would do a good job, and lo and behold, I found that he did a good job.

When I researched Adams and Jefferson, I didn’t know what I would find, and I was surprised that there were these controversies. They weren’t, the only issues during their presidencies, obviously. They… There were a lot of things going on. But there were credible claims of, the politicization of the pardon power.

I I guess I wanted to show that, maybe there was never, beyond the Washington presidency, there was never this pristine time of presidents only issuing pardons for the right reasons or on- you know, being perceived as only issuing pardons for the right reasons. I couldn’t do an analysis of every single pardon or every single presidency.

So there’s a bit of a, what I found in the course of my readings approach to this question. And, obviously, I focused on times of conflict where there would be more pardons, Lincoln’s amnesties and Johnson’s amnesties. And, I was young enough to, or old enough, that’s the right word.

I don’t know what the right word is. I remember the, the Iran Contra pardons and the Mark Rich pardons, and I remember, the outrage on both sides of the aisle, an outrage that doesn’t exist today, right? Maybe it’ll, come to the surface once President Trump leaves office.

There were some Republican critiques of the January 6th pardons but they weren’t anything like the Democratic critiques of Bill Clinton when he left office. So I, I don’t… I think I just wanted to show that there’s long been a sense that the pardon power’s be- being misused, even as I suppose and argue that it’s being misused far more frequently now than in the past.

Great, yeah. So I’m curious about the end of your book because you suggest a couple of different possible fixes for the pardon power, and then you leave it up to the reader to choose. And I just wanted to invite you to say if you have a preferred fix and also, how you would think about the three main possibilities that you give us in rank order.

I think s- I, there’s like a… I have a sense that I have to end on some sort of positive note, and so I have to propose something to fix the problem. And I do think it’s partly fixable. I don’t think it’s completely fixable. I think, there’ll always… You have humans involved, and we’re fallible.

You’re gonna have issues with how a power is exercised. If you make it very difficult to pardon, a lot of people suppose that the, that the punishment doesn’t fit the crime, that the punishment is far in excess of the crime. And if you have, a very loose free pardon power, then you have the sort of issues we have today.

But one of the reforms that I think is probably most useful is to just have a constitutional amendment, just being, a It’s an impossibility in a sense, but I don’t think it’s an impossibility given what I perceive to be popular discontent with its exercise, where the either chamber of Congress can, within 60 or 90 days of a pardon overturn it through a simple majority vote.

And it’s just basically constitutionalizing the legislative veto for pardons. And I think that’s better than getting the Senate involved. I think the Senate and the House have too much going on. They’re not doing the legislative job that they’re tasked with now, and I wouldn’t wanna create a new sort of council for the president in order to issue the pardon.

I would just let the president continue issuing it and let either chamber vote by majority vote to overturn it, and if they do, then the pardon wouldn’t vest. I think there are other reforms to think about, and I think, maybe having other people wield a pardon pen is a way of meeting the desires of criminal justice reformers for more mercy, which, I’m not an expert on that.

I don’t really know much about it. But I certainly can see the point that there’s a lot less clemency issued today as a percentage of, federal prisoners than there would have been in the past, in part because there’s still only one person deciding all this, and there are far many more people in the United States and far many more people who have been convicted of crimes or been accused of crimes.

And so there’s a mismatch between the president’s resources and the ability to issue clemency that could be remedied just by creating an alternative path to clemency, meaning someone else actually having the power. Just having someone else involved in making recommendations isn’t working, right?

Because that’s what we have now. It’s in the Department of Justice, and that has its own sort of pathologies, right? You… The Department of Justice doesn’t want to overturn its convictions. I think that’s a problem with having them in the recommendation pipeline. But there would still be a problem with the pipeline even if someone else was making the recommendations.

Yeah, wonderful. So one final question I have before opening it up to the rest of the room for questions, which I’m sure you’ll be eager to ask, and there are microphones here for people who wanna use them. I was really struck by a passage where you talk about the idea that an informer’s right to a portion of the fine couldn’t be gotten rid of by a pardon early on.

You say that Harrison opined that the president could not affect the rights of individuals and hence could not forgive the portion of any fine payable to informers under this particular statute. And the pardon could make this clear by expressly excluding the informer’s portion. And I think that one question that comes up a lot in pardoning is whether by pardoning the person doing the pardoning is giving up the rights of the person who, say, was harmed by a particular perpetrator to justice or to some form of recompense.

And so I’m just curious, this is a particular specific example where, you know, the financial right of the informer couldn’t be abrogated. But more generally, I think the people who have traditionally advocated against pardoning have said actually, it’s giving up the right of the victim to some form of justice.”
Professor Meyler, you know a lot about this. My understanding is the pardon power in England and in the States prior to the Constitution couldn’t be used to forgive private rights. If you were assaulted, there might be a criminal offense and there might be a tort, and the president could forgive the criminal offense but not the tort because that was the…

essentially the property of the person who was the victim of the tort. And I think they have that conception under the Constitution, and that’s… So an informer statute is a statute that says if tell the government of some wrongdoing, you get a portion of any fine collected. A qui tam statute would involve the person who knows of the wrongdoing suing on behalf of the United States in order to collect a portion of the fine.

In either of those situations, the… I think the British practice was to say, this person by, bringing the action or bringing this to the government’s attention has acquired a property interest in the fine to be collected, and so the Crown, either the Crown or in our case the president can forgive the can forgive the portion of the fine that’s supposed to go to those folks.

And so it’s a conception that they’ve staked their claim, and it’s no longer the government’s claim at that point, at least that portion of the fine. Great. Yep. So I see Michael is first in line for a question.

Ask those who with questions, please come and line up in the two aisles here and speak into the microphone. That’s so that the people who are listening out in the ether somewhere will be able to hear your question. But I will warm up the room with this one. A a particularly thorny issue is the one of presidential self-pardon, and I’m not asking whether self-pardons are distasteful or improper.

They’re obviously distasteful and improper. But whether they are within the scope of the pardon power given that the pardon power has no exceptions. They declined to exempt the treason power. They did exempt impeachments. But what about self pardons? Is it within the power? Yeah you’ve heated me up, Michael.

I… i… In a previous book, I had argued that the president could pardon himself. In this book I waffle. I’m not so certain that’s right. I think as a matter of text, y- the case for a presidential pardon is pretty straightforward. The president, like everybody else in the United States, can commit offenses against the United States either before they were president or while they were president, and so it would seem like they, they can be pardoned, and w- you might think it odd that they’re the only person in the country who can’t be pardoned while they’re president.

But one might, think about the spirit of the Constitution, and one might suppose that, the president shouldn’t be able to issue a pardon that so directly benefits him or herself. And so I… the book kind of waffles on it. I think that’s kinda where I am. I can see the arguments on both sides.

There are people who say that the act of pardoning itself is something that you do to someone else, and so necessarily you can’t pardon yourself, and that’s an interesting and perhaps compelling argument for some. The word reprieve I don’t think connotes that, and maybe the president can reprieve himself even if he or she can’t pardon himself, and maybe the next president then has to decide.

I don’t know. I think it’s an academic question in the following sense. For most of our history, no one’s wanted to prosecute a former president, and unless someone going forward wants to prosecute a former president, it doesn’t matter. That is to say, if Donald Trump pardons himself, but no, no future presidential administration thinks it’s worth their time to prosecute him then we’ll never know the answer to that question.

And I’m, maybe I’m hopeful that’s what will come to pass. I but, I don’t know what President Trump’s gonna do going forward, and I don’t, I don’t have a bead on the preferences of a future Democratic administration that might wanna prosecute him.

But if there’s no desire to prosecute, the self pardon wouldn’t do anything. And don’t you think that, just to follow up the immunity decision makes it a moot point for the most part? Someone could be prosecuted for acts before they were president, but a lot of what would’ve been covered before.

It’s a good point. It’s a very good point. The immunity decision makes clear that the president’s not gonna be immune from prosecution for his private acts, and the question is what portion of the president’s acts while he’s serving as president, are in his private capacity?

And I don’t have a clear sense of that. But one can imagine the court, the court saying that some of… not everything the president does now is an official act. And maybe you can’t prosecute him for directing the prosecution of someone else, right?
Or for obstruction of justice for an official act as the president. But I suppose you could prosecute him for other things, and I don’t know what he’s doing,

Hey. Yeah. Thank you so much for coming Professor Prakash. My name is Jayden. I’m a 1L. I had a similar question. I kinda wanted to try to color in the lines of the pardon power a little bit more, particularly on the note of preemptive pardons.

So to me, that sort of seems like a different subject than the traditional pardon. I, and I’m not sure what the limits there would be, but it seems a little strange that one administration can effectively bind a future administration- … in their prosecutorial decisions. Is that relatively uncontroversial, or what does that, what does the discussion or the debate over the limits of a preemptive pardon look like?

I, just to be clear, no one thinks the president can pardon someone in advance of the offense, right? So you can’t go to someone and say, that bank you’re about to rob, I’m gonna pardon you now for the robbery.” One of the interesting things I found is that in England there was a thing called a coronation…

Professor Meyler would know all about this. There were coronation pardons, and they were like clockwork, right? On the coronation day they’d issue a pardon. And people committed crimes in anticipation of the pardon. That’s how regular they were. So there are people thinking about the questions you’re thinking about.

It’s common to issue pardons before you try someone, right? That’s what a, a pardon for rebels would be. You w- you don’t tell the rebels, “I got your back. Lay down your arms. We’ll prosecute you, convict you, and then we’ll pardon you.” Because that doesn’t inspire confidence on their part, right? So it’s understood that the pardon power includes the power to grant clemency before a trial, and it doesn’t just extend to rebellions, right?

So for instance, imagine, imagine you think someone’s innocent. It’s a little convoluted because the president kind of controls, or at least at one time controlled prosecution in a very sort of direct way. In the early administrations they did this. But you can imagine, someone leaving office and thinking that someone is innocent, right?

Imagine that you think that some of the Biden pardons to his family members or to, Anthony Fauci or whoever, they were actually innocent. Then you wouldn’t want to, leave them hanging and allow the next administration to prosecute them if you thought they were actually innocent.

So I, I know why a lot of people are queasy about the idea of pardoning someone before they’re prosecuted, but people at the time know that’s a feature. That’s what the… When they’re talking about the president pardoning co-conspirators, they’re saying we’ll never know about the president’s involvement, and they’re all talking about a pardon before trial

Henry Etzkowitz, a 2026 law school applicant. I was going to ask you the counterfactual question about what would have happened if President Ford had not pardoned President Nixon, but then you seem to have answered it along the way by saying you didn’t think that anyone would go after a former president.

Would you care to take this on? That’s a wonderful question. You’re right. Nixon could have been proceeded against criminally. I’d forgotten about that. So yeah, maybe he would have been prosecuted for whatever offenses he committed in relation to Watergate. Maybe that, Nixon and Trump are singular in that respect.

I certainly hope that we don’t have others who follow any of those same paths. So I didn’t mean to suggest that Nixon had done nothing wrong. I had forgotten about Nixon temporarily, so thank you for the clarification. That’s an interesting example too, though, because it involves, the, I think, expectation that he wouldn’t pardon him in advance, and then when he took office, he did pardon him and that question of one of the things that you talked about was people making campaign promises about pardoning or not.
And should we imagine that presidents are bound by their prior statements before they take office about whether they’re gonna issue pardons or not? So I never ran this down, but I think there are English cases saying that if you promise a pardon upon certain conditions and then the conditions are met, the pardon vests.
I don’t recall… I didn’t write about it in the book, I don’t think, at any length. But the point I think is something like you can’t dangle the pardon and get someone to complete the contract and then not give it. I don’t know if a- an election promise for a pardon is a contract or something.

It seems like it couldn’t be, but in other situations… I don’t, and I don’t know if that’s happened in America. I don’t think it’s happened with the president but it might have happened at the state level. There’s all kinds of cases that I didn’t, I didn’t study the state pardon authorities with that level of detail.

Okay. Second? Did you- Oh, yeah, I was second. Yeah. Bringing it back to the last conversation you had with Bernie about civil wrongs, I’m thinking in that context we have a tradition of equity, and equity serves as a way of smoothing out the rough edges of the law. And it’s really useful potentially to have that sort of move on the criminal side, and it seems like the pardon power might be functioning to have that effect.

But I’m wondering about how the introduction of executively controlled prosecutions maybe already accounts for that today in a way that wouldn’t have been true at the founding. So at the founding, we generally didn’t have indictments sought by prosecutors that were then confirmed by the ham sandwich grand juries.

And does that change the analysis? It seems like the… Especially if we have a unitary executive theory of the control of the prosecutorial decision, that the sort of equitable considerations would come in on the front end. And obviously, that process might break down, but I’m just curious what’s the need for the pardon power if we already have these equitable judgments that are taking place at the level of prosecutorial discretion?

So Professor Campbell, are you saying that because the grand jury’s involved, the executive branch doesn’t really have some unilateral right to decide who’s prosecuted at the founding? Is that what you’re saying? For the most part at the founding, it’s a a grand jury indictment.

Sometimes they’re even self-informing. So it’s just a grand jury presentment, and it’s not even an executive branch decision to do anything. And so it just, it strikes me that the process is just much different. There is some discretion exercised by the grand jury- and potentially they’re gonna make an equitable judgment about whether or not this is a suitable thing to prosecute notwithstanding the fact that it violates the hard edges of the law. But you might want the executive branch to get involved in that in some way. And it strikes me that today that’s just not an issue.

Every executive… sorry, every prosecution today is, as far as I know, is made with the discretion of a prosecutor. And so I’m just curious- … about how that then interacts with the idea that we should even have a pardoning process at all. So that’s a very interesting question, and I, I would defer to you on how independent these grand juries were at the founding and thereafter.
But, Coexisting with that system was a system of the executive deciding on occasion to prosecute people or at least try to prosecute them, right? So Washington issues instructions to prosecutors in the Whiskey Rebellion. Washington issues instructions to prosecutors with respect to the Neutrality Proclamation.

And so there are various times where Washington and for that matter, Adams and Jefferson do instruct their prosecutors to do some things. Now, I think your point is the grand jury just might say, “We’re not gonna indict,” and that’s certainly true. And I think your further point is that’s more likely at the founding than it would be now.

But I don’t know if it’s inconsistent with executive control of prosecution to be able to at least start the process without the g- grand jury being the one that starts it. And then I don’t know enough about the practice to know whether or not the executive could just say you want us to prosecute this person, grand jury, but we’re not going to.

Because ultimately, imagine you’re in Pennsylvania and you don’t like the rebels and you indict them. I don’t think the president has to see that they’re prosecuted if he believes it’s in the interest of n- the United States to quell the rebellion by issuing a pardon. So I understand that the grand jury today will indict a ham sandwich in a way that wasn’t true at the founding.

But I don’t know if that means that the executive wasn’t in, in some measure still in control of who was prosecuted and who wasn’t.
The Constitution implicitly limits the pardon power in some important ways. So state crimes are probably a good example and a current bugbear for President Trump in his prosecution or attempted of Tina Peters. Impeachment’s another example, as you talked about in the colloquy with the first questioners.

Preemptive crimes or crimes committed in advance aren’t covered- … and continuing crimes aren’t covered. I’m curious how you’d respond to a structural interpretive constitutional law argument that these implicit limits are relevant to how we should understand the pardon power. I’m also curious, as we were doing historical research at the Philadelphia Convention, whether these implicit limits were things that were vigorously contested or discussed, or they really weren’t relevant to the proceedings.

This is a wonderful question. On the last point, I don’t think there’s any discussion of the implicit limits. So I… there’s just very little discussion at all. There’s, a hundred issues, a thousand issues, and the pardon power is not discussed in this level of detail. But, they’re importing British and colonial and state concepts, and they come with these sort of implied limits.
And I think your question is what can… would you use these restrictions to derive other restrictions? And I’m certainly open to the idea, although I’m not sure what other restrictions I would derive, right? Like in other words, having thought about all these am I inclined to think that there are others as well?

Perhaps. I just… Maybe if you could… you had a sense of what you were thinking, I might say, “Oh, that’s a very interesting and good point. I hadn’t thought of that.” But in the abstract, I’m not imagined enough to come up with the other restrictions in the way that you might be.

Yes. Hi. I’m — I’m visiting from France, and so I wanted to make a maybe comparative point that draws from the question you were asked and answer about preemptive pardons because they strike to me maybe to be one of these limits. And I understand the historical context where that was not controversial, it was actually the point.

But today, some of the problems that you have highlighted, such as clemency for cronies, for example- … strike me as a potential extension of presidential immunity to other people who are not immune. I think the example that you were that you were making. For example, in France, that’s an explicit limit in the Constitution, only final con- conviction can be pardoned by, the president. And so that made me think maybe it doesn’t solve all the political uses of pardon, but it might solve one of them or a couple. And then I was just thinking about your potential constitutional amendment, that particular restriction would not work in France, for example, because in the French Constitution, the presidential pardon is due to the fact that the president is the guarantor of the independence of the judiciary.

And so a legislative overturning wouldn’t work in terms of separation of powers. So that’s just a simple comparative point. Thanks. Thank you for that. I think, the separation of powers is what it is until the Constitution changes it. So I un- understand your point, but if there’s an amendment saying that the either chamber can overturn it, I think that’s the new separation of powers.

On… in terms of, preemptive pardons before trying the offense, I think it would have an effect on who the president could pardon. But then you’d have to, you’d have to think about what the president would do in response to that. And one thing the president would do is, “I will try you, you will plead guilty, and then I will pardon you,” right?

And it would… so it wouldn’t solve… it would solve some things ’cause maybe you wouldn’t be able to do that in time, right? But given the ability to plea and to avoid a trial altogether, I don’t really know if it would be that much of a constraint to say that you can’t, you can’t pardon preemptively.

I guess it would mean if no one knew about the crime and you didn’t want to publicize the crime by prosecuting them and then pardoning them, you might not do that because you’re… maybe you’re hopeful that no one ever finds out about it, and this is obviously bringing attention to it. But I’m not sure that…

as you can tell, there’s no sort of silver bullet solution to the many problems of the modern par- pardon power. So I think we have time for one more question. Like you mean. So what you just said is one of my frustrations is that when you pardon someone before they go to trial, you don’t create a public record of what happened.
You don’t find out what was done and how and who else was involved. I’m just wondering, is there a workaround for that for someone that’s been blanket pardoned to force them to submit to, a testimony under oath about what they did, not what they did? I don’t, it’s a wonderful question, and I certainly haven’t given it enough thought.

But, perhaps Congress has the authority to require people who receive a pardon to do certain things, not upon pain of losing a pardon, but upon paying, of losing a, paying a fine of some sort or facing some kind of punishment for not complying with the statute. I’m not sure they could say the pardon would be valid only if you fessed up to the, the entire set of affairs that led to the pardon.
Separately from that, I think Congress can hold hearings and try to figure out what’s going on. In, in, decades past and centuries past, that seemed fairly effective. It no longer seems effective to have a hearing and try to get people to cooperate. Maybe that will change. But I see the wisdom of what you’re saying.

So with that please join me in thanking Professor Prakash.
Thank you so much for coming. This has been a wonderful discussion. I really appreciate it