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♪ ♪ KATKO: Welcome, America, to "Balancing Act", the show that aims to tame the political circus of two-party politics.

I'm John Katko.

This week, presidential pardons.

What was the original intent, and how much power should presidents have when it comes to granting them?

In the center ring, former United States Pardon Attorney Liz Oyer, and Congressman Steve Cohen brief us.

On the trapeze.

Professors Mark Osler and Bernadette Myler debate the issue.

Plus, I will give you my take.

But first, it's time to walk the tightrope.

♪ KATKO: The presidential pardon, one of the most powerful and controversial tools in American government, traces its roots all the way back to the British crown.

Kings once used the royal prerogative of mercy to forgive crimes or calm rebellions.

America's founding fathers borrowed the idea, but with a critical difference: they gave the power to an elected president, not a monarch.

Article II, Section 2 of the Constitution says the President shall have power to grant reprieves and pardons for offenses against the United States, except in of cases of impeachment.

And if you're thinking, well, what about Nixon?

Well, he resigned before the House could formally impeach him.

Alexander Hamilton called the pardon power essential to justice.

He argued that laws can be too rigid, and that sometimes only a single act of forgiveness can heal a nation.

But even then, the founders worried if that mercy was used to protect the powerful or to confer favor on a president's own allies.

From America's earliest days, presidents have walked that constitutional tightrope.

George Washington pardoned the leaders of the Whiskey Rebellion to ease tensions in the Young Republic.

Thomas Jefferson wiped away convictions under the Sedition Act, defending free speech.

Abraham Lincoln and his successor, Andrew Johnson, pardoned thousands of Confederate soldiers to reunite the country.

Gerald Ford did the same for Richard Nixon, believing the nation needed closure, though many saw it as a miscarriage of justice, and it's been argued it cost Ford the 1976 presidential election.

And Bill Clinton's pardon of financier Marc Rich was widely criticized, sparking congressional investigations into what some considered a pay-for-pardon play.

Modern presidents are no exception.

Donald Trump issued headline-making pardons to allies Roger Stone and Paul Manafort, granted clemency for most of the January 6 rioters, and even commuted the sentence Of disgraced Representative George Santos, who was convicted of fraud and identity theft.

And Joe Biden, in his final hours in office on January 19, 2025, issued preemptive pardons for five family members, including his brother, James, and his own son, Hunter.

However, a pardon is only one piece of a larger power called Executive Clemency.

Presidents can also commute sentences, offer reprieve - which means delay punishment, remit fines or grant amnesty.

Together, these powers form a constitutional embodiment of the old royal prerogative.

And yes, the Supreme Court has weighed in on this.

In Ex parte Garland back in 1866, the court affirmed that the President's clemency power is unlimited except in cases of impeachment, and it covers all Federal offenses.

For more on how this power is carried out, pardon me, while I head into the center ring.

♪ KATKO: The person at center ring is former United States Pardon Attorney, Liz Oyer.

Liz, welcome to the show and walk us through the process.

How does the presidential pardon actually work?

LIZ OYER: Well, that's a great question.

I think a lot of people would like to know more about how the pardon process is working right now.

It's different under different presidents, but one constant throughout history has been that the Justice Department has played a significant role in advising the President about When to exercise his constitutional pardon power.

The Constitution gives the President very broad discretion over pardons, and the role the Justice Department plays is to try to ensure that it is applied in a way that is fair and that actually upholds the values of our justice system.

So there's an application process that runs through the Office of the Pardon Attorney, which is an office within the Justice Department that is headed by usually a career nonpartisan official.

That office reviews and vets all applications that come in for clemency and makes a recommendation to the President based on the merits of the case.

That recommendation is not binding on the President.

The President can grant clemency to whomever he chooses, ultimately, but that Recommendation is something that typically carries a lot of weight with most presidents in deciding whether to grant clemency.

KATKO: let's take a step back.

You mentioned the Office of the Pardon Attorney.

Was that always in existence with our government from the beginning?

OYER: Some version of that office has been in existence for about 150 years, so it's quite an old institution.

It's taken different forms at different periods in time.

But what has been constant about it is that there are a set of standards that apply, that are intended to ensure that pardons are granted in a way that is fair and that's not destructive to the justice system.

KATKO: So who decides what those Standards are?

OYER: There's a document called The Justice Manual, which is essentially the Bible for Justice Department employees that has a very detailed set of criteria that apply for considering pardons and commutations.

There are two main forms that clemency can take.

A pardon is essentially forgiveness for a crime of Conviction, and it's not an Expungement, but it has the effect of restoring civil rights that are lost as a result of a criminal conviction, as well as erasing any remaining parts of the sentence.

A commutation is a different form of clemency that's commonly granted, and that just reduces the prison sentence, typically, of a person who is usually incarcerated at the time they receive that relief.

So there are different sets of Standards for those two forms of relief, but they both look at rehabilitation, acceptance of responsibility, and good conduct as sort of the hallmarks of demonstrating that you're deserving of a second chance through clemency.

KATKO: So now, the types of crimes that are actually available for a pardon of some sort- are state crimes available?

OYER: No, only federal crimes.

The President has the power to pardon federal crimes as well as certain military offenses and offenses under the District of Columbia Code.

So state crimes generally can only be pardoned through the governor of the individual state, and different states have different processes for applying for that type of relief.

KATKO: So let's just talk more theoretical here.

What's the intent behind the pardon power?

What was the intent briefly, and has it shifted over time?

OYER: Yeah, it's about mercy, That was the intent.

The founders of the Constitution debated whether to give this power to the President.

They recognized that it's a power that historically has been wielded by kings.

It's sort of a unilateral ability to erase a criminal sentence or a criminal conviction, so it's a very significant power, and the framers debated whether to give it to the President, and they decided that the criminal justice system can sometimes result in outcomes that are unduly harsh or unfair.

Think about cases of wrongful conviction, or cases where the law requires a penalty that really just doesn't fit the crime.

That's what the framers had in mind when they decided to give the President the power to pardon, and the intent was that he would use it for good.

He would use it for mercy, for people who truly deserve it.

KATKO: Are there meaningful checks at all on the pardon power?

OYER: The only checks historically have really been norms and traditions and accountability to the public.

There are no legal constraints on the President's pardon power because the Constitution makes it a very broad power.

But most presidents have felt some accountability to the public, and they haven't wanted to use the pardon power when they didn't believe it to be in the interests of justice.

There are some examples from many presidents throughout history of pardons that were very controversial, but those well-known cases are actually the minority of pardons and commutations that have been granted.

In most cases, they've been granted to people who have really demonstrated that they were deserving of a second chance.

KATKO: So in your view, are presidential pardons and their lack of checks a feature of democracy or a flaw of the system?

OYER: Well, I think that if they were used as the framers intended, they would be a good thing.

I'm somebody who believes that the criminal justice system has, in many cases throughout history, produced overly harsh outcomes.

The main area where we see that is mandatory minimum sentencing laws, which require sentences sometimes that really are just overly harsh for the crime, particularly in cases of nonviolent drug offenses.

So clemency does have a real important role to play there.

But clemency has been misused by many presidents in ways that raise legitimate questions among the public about whether the clemency power is a good thing and whether it really ought to be reformed.

KATKO: Liz Oyer, thanks so much for a great conversation.

Now, in the center ring, Tennessee Congressman Steve Cohen.

Congressman, you have long advocated for a constitutional amendment to address the pardon issue.

Why is that, and what do you hope to achieve?

STEVE COHEN: Well, going back a long time, when I was at a constitutional convention, which was a body that changed parts of our Constitution of Tennessee in 1977.

And at the time, our Governor, Ray Blanton, became notorious for selling pardons and letting out murderers and friends of his children, who were murderers.

And I proposed a pardon power then, that would say no pardon would be effective unless approved by a majority of the Supreme Court who reviewed the ball.

It didn't gain enough traction to pass, but as an indication of how far back the pardon abuses have been, and they go back many years.

And we saw it with pardons toward the end of the Clinton presidency.

Some of them were wealthy people, but they pale in comparison to what we've had today with Trump and the pardoning of this crypto fellow, and then all the Insurrectionists in one fell swoop on day one.

And then Biden did a lot of pardons that were kind of concerning about what Trump might do, and he pardoned all the members of his family, and some of the people involved in some of their committees.

But I proposed a pardon power amendment to the Constitution, which is a constitutional power that would say a President couldn't pardon A member of his own family, a member of his campaign staff, a member of his administration-and we defined how those were kind of hard to define what they would, beand that a pardon to any person for a corrupt purpose, which gives some leeway for the courts to look into what was done.

Now, I proposed it the first time during Trump's first term, I think it was, and people said, "This is aimed at Trump," etc.

But I proposed it during Biden's term as well.

And I had a few Republicans say that they support it, but then it never got to a vote.

And here we are now, we've introduced it again.

But I think it was good for the goose and for the gander, and it really is a corrupt thing.

The Supreme Court, when they said that the President could act in his official capacity with immunity, really licensed robbery in the pardon power, because people see it as one of the President's powers and in his official capacity.

He is immune from any prosecution now because of what the Supreme Court said, which I think was a way-out decision from nowhere.

But that gave him this power; he can do anything he wants now.

He used to be a stink about it, and it was wrong, and I don't think people accepted money.

They did political favors.

Now I think they're being sold, and it's legal for him to do it because the Supreme Court said he can't be in any court or a law to question his actions in an official action now.

KATKO: Yeah, it seems perfectly logical what you're trying to do, and that is get it back to what the original framers wanted it to do.

KATKO: Yeah, it seems perfectly logical what you're trying to do, and that is get it back to what the original framers wanted it to do.

So tell us, what kind of reaction are you getting from your colleagues, and is there any hope on the horizon you might be able to achieve this goal?

COHEN: Well, I doubt it, because right now, the House pretty much operates for, by, and aboutTrump.

And while, you know, I'm on the Judiciary Committee still, I don't think the Judiciary Committee scheduled the bill for a hearing because it would bring up discussions about Trump's pardons, that it would limit Trump's power, and he likes the pardon power.

He's pardoned George Santos.

George Santos' whole career was antithetical to what the American people expect of a representative-honesty, and at least who their grandparents were, who their mother was, and all those other kinds of things.

And he's pardoned a lot of financial fraud, which means people don't get restitution when they're pardoned, so it hurts individuals who've been damaged once-they get damaged the second time with the pardon.

I don't think they'll be scheduled for a vote.

That's unfortunate, and if the Democrats come back into power, the Democrats might now want it to come up, but in the first term or so, first year or two of a Democratic president, they might, because the President doesn't normally issue pardons until the end of the term, and I don't think the Democrats would be thinking about that at all, and maybe the President wouldn't need it.

KATKO: Yeah, it seems like most of the modern-era presidents have used and maybe even arguably abused the pardon power, and, you know, to different degrees, but it's still there.

So it sounds like what you're saying is if the right time happens, you still have hope for this?

COHEN: Well, the right time would happen to be somebody other than Trump.

It could be a different Republican president, and maybe the Republicans would go along with it.

Trump has just a very unique and powerful hold on his party.

I don't think anybody else who would be president-a Republican or a Democrat-would have that same kind of hold and maybe they would act independently and act on behalf of what's good for the people and to reform this abuse.

KATKO: So have you had the opportunity to try and get Co-sponsors of this bill?

COHEN: Yeah, well, I think I had Chip Roy, and, when Biden was president, but when Trump became president, I didn't have any Republicans at all.

KATKO: Well, it sounds like it's gonna be a tough road ahead going forward, but it is something I presume you're gonna keep pushing as long as you're in Congress.

COHEN: Yes, I am.

I think it just is an awful abuse, and it needs to be cured, and the only way to cure it really is through the amendment process.

The amendment process is difficult, but if it gets through Congress, it could possibly pass because the people would want it.

They want fairness against these pardons that are questionable and corrupt as anything else in government, I think.

KATKO: Congressman Steve Cohen, we really appreciate your time, and we hope that you're ultimately successful on this.

It sounds like it's important for the American people.

Thanks so much.

COHEN: Thank you, John.

Good to see you, and you were an outstanding representative, and it's an honor to see you today.

And that's the reason I'm on this show.

KATKO: All right, thanks so much, my friend.

♪ ♪ On the trapeze this week are professors of law, Bernadette Myler and Mark Osler.

Mark, let's start with you.

Have recent presidents used pardons primarily for the purpose of its intent?

And if not, what are other motives for presidential pardons?

MARK OSLER: Well, it's a hard thing to say what the intent was.

I mean, when the framers put the pardon clause into the Constitution, there wasn't a lot of clarity other than it was very unusual to include that power of kings right in the middle of the document that pretty much was about removing the power of kings from the executive.

What we do know is that it puts it firmly in the hand of the president, which means it's going to reflect the principles of that executive.

And that's something we've seen through history right up to the current day.

KATKO: Yeah, I think there's no doubt with respect to that, and each president seems to have had Their own unique mark on pardons.

Bernadette, what do you think?

BERNADETTE MYLER: Well, I would agree with Professor Osler that it's somewhat unclear what the original intent was, but Alexander Hamilton had a particular view, which was that a well-timed offer of pardon could stop an insurrection or rebellion in its tracks.

And President Washington used the power in that way when the Whiskey Rebellion happened in Western Pennsylvania shortly after the founding moment.

So I think that that was one of the reasons why the pardon power was included in order to provide a kind of emergency escape valve for possible revolutionary or insurrectionist activity.

And so I think that actually, it hasn't been used in that way recently.

We could say that the January 6 pardons were something like that, but what historically has happened is that it's the winning side that has pardoned The insurrectionists or people involved in quasi-revolutionary activity rather than the side aligned with them.

KATKO: So, Mark, Article II, Section 2 of the Constitution is pretty plain-spoken when it talks about pardons, but would you agree that Alexander Hamilton seemed to have taken a little bit more restrictive view?

OSLER: Well, I mean, he did say it was for instances of Unfortunate guilt that it extended-and this is in Federalist 74.

You know, that when the law goes too far, that sometimes we have laws that are too harsh, the people that suffer from those rough edges - I think that is what he had in mind.

Understanding the dynamic of the legislature, you certainly Understand that sometimes it's reactive.

For example, in the '80s, when There was the reaction to the crack epidemic, which had serious social consequences, but there was a reaction that wasn't the result of study and real deliberation, and we paid the price for that.

And then it was clemency in the end that did allow for some of those people suffering the too-long crack sentences to be Released from prison, along with congressional action.

KATKO: Bernadette, could you Explain your view on this?

MYLER: Yes.

Well, so I think that partly what Hamilton is saying is that pardoning is an emergency power, so I think there's that part.

And then, what Professor Osler is referring to is these kind of broader pardons for laws that were excessive.

So the Rockefeller drug laws, For example, in New York in the 1970s, and the other drug laws that really imposed very harsh Sentences.

And I would agree that a lot of governors like former Governor Terry McAuliffe in Virginia and other governors managed to pardon hundreds of thousands of people and restore their rights who had been convicted under these excessively harsh laws.

So I think that that has been a very important purpose of Pardoning recently.

It's happened less on the Federal level.

One example is Alice Johnson, who's now been appointed pardon czar by Trump.

She was convicted of a drug offense and given a very lengthy sentence, and then pardoned by Trump.

And I think her task, really, in the administration is to look for similarly situated people and recommend pardons for them.

KATKO: So, Bernadette, I'll stick with you for a moment.

Obviously, those types of pardons, I think people have less angst over, but when you see friends or family members or major donors getting pardons-for example, Marc Rich in the Clinton administration or Hunter Biden, or some of the things with Trump, for example, George Santos's most recent one-do you ever think that, do you agree With the American people, the sentiment of the American people, that sometimes presidents have overstepped their pardon authority?

MYLER: Absolutely, and I think, unfortunately, the authority as interpreted by the Supreme Court is exceedingly broad.

But I think that the founders thought that there would be a check in the form of impeachment, which hasn't really worked recently.

But I think there are a number of instances where presidents Have acted improperly in pardoning.

So one example is what you mentioned with George Santos.

I would also mention Rod Blagojevich.

Other people who were convicted of corruption related to public office, I think that kind of pardon sends a really bad signal about the political process and what's acceptable within the Political process.

There is also a set of pardons that have an appearance of impropriety because of being connected with financial remuneration.

So there was a person pardoned for tax crimes a week after his mother, I think, attended a benefit for President Trump or his campaign.

And things like that, I think, even if they're not improper, they look improper.

Also, I would point back to earlier in the first Trump administration when he pardoned Arizona Sheriff Joe Arpaio, who had been convicted of criminal contempt and had been subject to a criminal contempt proceeding because of his violation of civil rights of people accused of immigration violations.

And in that case, I think pardoning people who have been accused of violating people's civil rights sends an unfortunate signal about impunity with regard to violating civil rights.

And, you know, you mentioned already the Hunter Biden pardon -I think that was improper, especially the rationale given for it, which was that Biden had been subject to particular targeting in the criminal process.

Of course, that was a criminal justice system that President Biden was overseeing.

So trying to call out the criminal justice system that he himself had been overseeing also seemed improper.

KATKO: Mark, your take?

OSLER: Well, I don't think any president has exceeded his authority to grant clemency because that authority is extremely wide.

What has been problematic is the morality of these grants and the principles behind them.

I think the check on clemency is democracy, and that, you know, unfortunately, we don't get the chance to do that very often.

And that's problematic.

Now, when I talk about the lack of principle, we have seen these troubling grants - people that don't seem to deserve it, who are friends and family, under both Biden and Trump.

We have to recognize that this is a bipartisan problem.

You know, when we talk about clemency generally-and John, I think this speaks to your own heart-it's something that we see That's not a red-blue divide.

The states that are good at granting clemency very often are Red states like South Carolina, for example.

But going back to the principle behind it, unfortunately, we fail to demand an articulation of that principle before someone is elected.

It was rare that President Trump talked about clemency at all before he was elected, and it hasn't been brought up in a debate in my lifetime, at least not since Carter and Ford, when they had a debate where they actually talked about what Carter was going to do with Vietnam-era offenders.

But again, I don't think it's the authority of the president that's been exceeded.

I think the failure has been a failure to articulate principle and then act on it with Fairness.

What we see is that these people who are being released - friends, family, often donors, supporters, loyalists - are prioritized.

But what's being forgotten is the thousands and thousands of people who followed the rules, filed a petition, and want a pardon because they've been out for 20 years and have been great citizens.

That gets lost in this discussion of these high-profile grants.

The process is allowing those people to be ignored en masse, and that is not within the intent of the pardon power.

KATKO: Mark Osler, Bernadette Myler, thanks so much for a great conversation.

Now it's time for my take.

♪ ♪ The presidential pardon process seems to stray quite a bit from the founding fathers' original intent.

Tennessee Congressman Steve Cohen is right when he says, "The pardon power is supposed to be a safety valve against injustice and not a way for presidents to put themselves, friends, family, lackeys, or co-conspirators above the law."

I fully support his effort to pass a constitutional amendment That would bar pardons for family members, administration officials, campaign staff or employees, and the presidents themselves.

It would prohibit pardons for anyone engaging in criminal misconduct on the president's behalf and make any pardon issued for a corrupt purpose - past, present, or future - invalid.

In short, Congressman Cohen's proposal would restore clear boundaries to the pardon process and renew America's faith in the fairness of our government.

Pardons should be about righting wrongs, not about handing out "get out of jail free" cards.

And that's my take.

That's all for this week, folks.

To send in your comments for the show or to see "Balancing Act" extras and exclusives, follow us on social media or go to BalancingActJohnKatko.com.

Thank you for joining us, and remember, in the circus that is politics, there's always a "Balancing Act".

I'm John Katko.

We'll see you next week, America.