From Washington to Trump: Explaining the Evolution of the Presidential Pardon

WALTER ISAACSON: Thank you Bianna and Professor Sai Prakash, welcome to the show.

SAIKRISHNA PRAKASH: It’s a pleasure to be with you here today.

ISAACSON: You’ve got your new book, it’s called “The Presidential Pardon: The Short Clause with a Long, Troubled History.” Let’s begin with the history. How did it begin?

PRAKASH: Well, as, as you know, Walter, this pardon power, you know, exists in many different civilizations, but our pardon power mostly comes from the Brits. As colonies, you know, we benefited from the pardon power. And then when they created a new, you know, when they declared independence, the states exercised some bit of pardon power, as did the Continental Congress. When they got to the Philadelphia Convention, they decided that there needed to be a pardon power at the federal level, in part because many criminal laws were too harsh, and they saw a need to reduce that harshness through the pardon power. And so that’s why we have a pardon power in the federal Constitution.

ISAACSON: I think Alexander Hamilton defends it in the Federalist Papers and even gets into a bit of an argument with George Mason down in Virginia, where they have it different on impeachment. Explain those arguments.

PRAKASH: So Alexander Hamilton in the Federalist is defending the Constitution. It actually turns out that at the convention, he did not want to have the president have the power to pardon treason. But when he’s talking about the Constitution, you know, as Publius, his job is to defend the Constitution as it is. And his discussion in the federal is somewhat nuanced, because he doesn’t say that there aren’t any potential issues with the breadth of the pardon power. He admits that there are, but he says on balance, it’s better to give the president an unfettered power, because if you fetter it, you’re making it more difficult to give pardons, especially in cases of rebellion. He talks about that at great length. So he’s, you know, he sees the wisdom of giving the president a broad pardon power, but we don’t really know what he thinks because what we’re seeing is a, you know, a bit of advocacy on his part. It’s – the game is to try to get the Constitution ratified. And of course, he and others are successful.

ISAACSON: So you talk about rebellion and that they needed it in cases of rebellion to try to bring the country together. And so George Washington does that with the Whiskey rebellion, a pretty wild treasonous thing. Two people convicted for death, and then Alexander Hamilton is kind of shocked that he does that, right?

PRAKASH: Well, as, you’re right, that there’s a, there’s people in Western Pennsylvania that don’t want to pay a tax on whiskey, and they tar and feather collectors, and they obstruct the, you know, the US marshal from enforcing the law by ordinary means. And Washington sends state militias, and one of the tools he uses is “lay down, your arms become peaceable again, and you’ll get a pardon.” And so that’s the first sort of mass pardon under the constitution. And you’re right, that some federalists are just made because they want a crackdown to prevent rebellions going forward. And, you know, it turns out that there is another rebellion in Pennsylvania several years later under the Adams administration, you know, was it a result of the mercy shown by Washington? It’s hard to say. You know, we’ve had a number of rebellions. We had the Civil War, and there was no rebellion after that. But certainly Hamilton, and I guess Washington proved that a well-timed offer of pardon could lead to a pacification of the populace, because sometimes people start a rebellion and then they come to their senses, or they decide it’s not such a good idea, and a pardon makes them, you know, gives them confidence that if they lay down their arms, they’re not gonna be executed for having taken them up in the first instance.

ISAACSON: Well, of course, that has echoes today with the January 6th insurrection and Trump giving a pardon all the way through. How is that different?

PRAKASH: Well, it, you know, I think what’s going on today, Walter, is that the pardon power is being used for political purposes in ways that, you know, would’ve been unfathomable at the founding. The book talks about how many different pardons by many different presidents were perceived as partisan or political, meaning they were perceived as advancing the interests of the incumbent. And that’s happened repeatedly. But the kinds of pardons we’re seeing now, both to prevent prosecutions, but also to undo prosecutions, I think is fairly unprecedented. 

Right? On January 19th, you have President Biden pardoning a bunch of folks who he thought might be prosecuted by President Trump, and then President Trump comes into office and the undos, you know, prosecutions related to January 6th. And then on top of that, we have the, you know, the, the prospect of candidates for pres, the President promising pardons as a means of getting elected, which we haven’t seen before. I think the first time we saw it was Joe Biden and marijuana. And of course, Trump explicitly campaigned on a promise of pardons to folks related to January 6th. And I think we’re gonna see this going forward where presidents or candidates run for office saying, I will pardon some group, and thereby hope to gather votes from people who are sympathetic to that group.

ISAACSON: You write that the pardon power can effectively rewrite some of Congress’s laws, whatever Congress wants. Tell me why, how that works.

PRAKASH: Well, so, Walter, the President not only can give an absolute pardon, a full and unconditional pardon, the President can also commute sentences. And so if a president believes that the penalty for, you know, failing to file your taxes is too high, the president can reduce the financial penalty, or the President can reduce the sentence, right? The Congress might provide that failing to file your tax returns is a 10 year crime. And the President can say, I think it’s a six month crime. And the Congress can provide that, you know, dumping pollutants is a $10 million fine. And the President can say, I think it’s a $1,000 fine. And that’s what I mean by sort of effectively rewriting the statutes, right? Any maximum that Congress or any minimum, rather, that Congress puts in a statute, the President can undo through a commutation. And of course, if the President really dislikes the statute, he could, theoretically at least, try to pardon all violations of it and thereby effectively undermine the statute, right? And so that’s, you know, that’s arguably what President Biden did with respect to marijuana. And again, one might favor the decriminalization of marijuana, but still understand that what Biden did with respect to marijuana could be done with respect to any statute that has a penalty attached to it.

ISAACSON: One of the controversial pardons was when President Clinton pardoned the billionaire convicted financier, Marc Rich. Is this part of sort of a downward spiral or just ratcheting badly of the abuses of the pardon power?

PRAKASH: I very much think so, Walter. Mark Rich was pardoned by Clinton on the last day of his presidential term. And there was a firestorm that resulted in congressional investigations and a US attorney investigation. And there was a bipartisan sense that this was wrong, that people should not get pardons if they contribute to the President’s library, or if their spouses or ex-spouses contribute to the President’s library or campaign. This was such a powerful sense that when George W Bush tried to pardon Isaac Toussie they kind of revoked the pardon after the fact. 

But now I think we’ve kind of, you know, gone off the deep end. President Trump is pardoning many, many contributors, and there are some voices criticizing that, but I think they’re rather muted. And I think they haven’t really affected the president’s incentives. I’ve seen the President showing no hesitation to pardon those who have contributed to his campaign or his Super Pac. And I wonder whether that taboo has been utterly broken by this president, meaning to say, the next president might be willing to pardon contributors on the sense that, well, why shouldn’t contributors also be able to get a pardon? Why should they be disabled from getting the pardon? They should be able to get a pardon like anybody else. And then you might suspect that people who contribute are more likely to get a pardon, because they’re more likely to get the president’s attention.

ISAACSON: Tell me about the Trump pardons to contributors and others. Which one bothers, which ones bother you the most?

PRAKASH: Well, there, I mean, I think they’re all kind of troubling. What I would say is that there are lots of, you know, what’s going on now, Walter, is people are facing millions and hundreds of millions of dollars of fines, and they’re getting a pardon, which not only absolves them of guilt, but also erases those fines, which has a rather huge effect on the Treasury. And if you are someone who’s a billionaire or a multi-multimillionaire, you can see why you would pay, you know, why you would donate to a campaign or pay a lobbyist several million dollars thinking that you might avoid a hundred million or a 200 million or even a $500 million fine. It makes economic sense, right, from a purely cost benefit analysis to spend that money to donate to the President’s Super Pac or to hire an expensive lobbyist because you’re avoiding such a huge fine. And so I think we’re gonna see more people donating to the President’s Super Pac or doing business with the President or, you know, donating to a presidential campaign in the hopes of getting a pardon. Because again, that taboo is broken. And from their point of view, if they can avoid two or three years of jail time and or hundreds of million dollars of fines with 20 or $30 million, that’s a very good investment.

ISAACSON: One of the things that President Biden did, former President Biden, besides giving a pardon to his son who had been charged with a crime, he pardoned people preemptively, such as General Milley or Dr. Anthony Fauci, who had not been charged with anything, members of the House committee hadn’t been charged. Was that a new move on the pardon?

PRAKASH: No, that’s always been a possibility. Go back to the rebellion example. When you pardon rebels, you’re not saying, we’re gonna prosecute you, convict you, and then give you a pardon. You’re saying, if you lay down your arms now, you won’t be prosecuted. Here is a pardon. Right? So you’re often gonna make a pardon before any prosecution in order to, you know, avoid that prosecution. And I, you know, I think, I think President Biden thought these people were innocent, that they were likely to be targeted by President Trump. And so he pardoned them preemptively. And whether one thinks that’s a good idea or not turns on whether one thinks these folks committed crimes that ought to be prosecuted. 

Obviously, President Trump and his allies did think that. But when President Trump leaves office, I suspect he’s gonna do something similar to his allies. He’s going to pardon them to prevent a Democratic administration from prosecuting them. And then a different set of people will feel rather aggrieved by that, because they will feel like the President is pardoning his allies, some of whom committed crimes. And it’s wrong to give them this blanket immunity upon leaving office because it sort of incentivizes them to do wrongful things while they’re in office. I mean, in other words, if President Trump’s appointees know they’re gonna be pardoned at the end of his term, they might do all manner of things that they ought not to do and that they wouldn’t do but for this idea of a preemptive pardon at the end of his term.

ISAACSON: Could a president give a preemptive pardon to himself for the rest of his life?

PRAKASH: Well, it’s a great question. We haven’t, we’ve never had a president pardon himself. There was a governor, a territorial governor who pardoned himself out in the Western United States. But the president’s never done it. Nixon was told that he couldn’t do it, and so he didn’t do it. I think if, you know, a president ever pardoned himself, it would, I think it would suggest to the public that he had done something wrong, because otherwise, why are you pardoning yourself? There’s always a sense, rightly or wrongly, that people that are pardoned have done something wrong, even if they haven’t necessarily done something wrong. But that’s the sort of working assumption people have. And so, I don’t know if one of the last acts of a president should be or ought to be a president trying to pardon himself. The only way we would know whether that was constitutional or not, is if a subsequent administration tried to prosecute the President.

If they have no interest in prosecuting the President, then the pardon really had no effect on the president’s immunity from prosecution. Right? So it, you know, the, a self pardon, whether it will have real effect, will turn on whether someone is willing to prosecute an ex-president. We’ve seen that for the first time with respect to Trump. You know, I, I hope we don’t see too much of that going forward, but of course, I suppose part of that turns on what we think our presidents are doing while in office.

ISAACSON: You talk about President Trump’s pardon of the January 6th insurrectionists, and you say it’s gonna “reverberate in extraordinary, unprecedented, and unforeseen ways.” Tell me about that.

PRAKASH: Well, I, again, I think part of what’s going – so the first thing we remember is that President Trump ran on giving them a pardon. Now, he, when he ran for president, the, you know, the third time he said he wasn’t gonna pardon everybody. ’cause He said some of those people were violent offenders. And so he suggested he was only gonna give a pardon to some. And then when he got into office, I think he decided he didn’t want to distinguish the violent offenders from the folks who just wandered into the capitol. And I think he just wanted to fulfill this promise as soon as possible. And he kind of realized that he would face continuing pressure to pardon them, even if he didn’t pardon them at the outset. So he just sort of decided to, you know, cut the Gordian knot, so to speak, and, and pardon them all.

But I think what you, you know, what you might suspect is that going forward, presidents are gonna run for office promising to pardon their allies, their political allies, their partisan allies, and hoping to secure their votes, hoping to secure their enthusiasm for their candidacy. And, you know, it turns out that sometimes partisans are guilty of crimes, right? It’s not as if every partisan is, you know, is spotless and, you know, innocent of, of crimes. And so, I don’t think we should be using the pardon power to reward our, our political allies and, and to secure votes, right? Which is kind of what’s, what’s going on in the past two administrations. 

So, I, but I do think this is what you know is gonna come – this is what’s gonna happen going forward, right? Because unlike many of the promises the president makes, a candidate makes when running for president, this is a promise that the president can actually fulfill, right? The president does not need to go to Congress to pardon people. And there’s no judicial review or very little judicial review of these pardons, right? Meaning that the President has unfettered discretion to satisfy or to you know, meet his campaign promises, which makes it a very attractive promise to make, and it makes it a very attractive promise to fulfill.

ISAACSON: Short of a constitutional amendment rewriting this famous clause. Is there anything that can be done, any guardrails that can be put in?

PRAKASH: I think the American people can vote for candidates who promise to be more circumspect in granting pardons, who promise to follow a practice of listening to people who have reviewed these applications in great detail. Right now, and at the end of every administration for the last several administrations, presidents are acting at the behest of lobbyists to a greater degree than they’re acting at the request of experts who have reviewed these applications. And so, if presidents would sort of revert to some sort of more normal process of having experts review these applications and then pledging to act upon only those applications that experts have vetted, then I think people would have greater confidence in the pardon process if they perceive that pardons are being promised to get votes, and if they perceive that pardons are being given to contributors, then I could see very little reason why you should feel very confident about this process, because it seems to favor the rich and the wealthy and the connected more than the average person who might’ve committed a crime in the past, but has led an exemplary life in prison or out of prison, and therefore might merit a pardon.

ISAACSON: Professor Sai Prakash, thank you so much for joining us.

PRAKASH: It’s been my honor and pleasure. Thank you.