Jack speaks with University of Virginia School of Law Professor Saikrishna Prakash about his new book, The Presidential Pardon: The Short Clause with a Long, Troubled History. They discuss the origins of the pardon power, the framers’ anxieties about its breadth, controversies about its early use, how modern presidents have increasingly used clemency to advance ideological, political, and personal goals, and the challenges of reform.
Mentioned:
Saikrishna Bangalore Prakash, The Presidential Pardon: The Short Clause with a Long, Troubled History (2026)
“Trump’s Circumvention of the Justice Department Clemency Process” by Jack Goldsmith and Matt Gluck (Lawfare, Dec. 29, 2020)
Thumbnail: President Gerald R. Ford Signing a Proclamation Granting Pardon to Former President Richard Nixon in the Oval Office. (Public Domain.)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: I’m chatting today with Professor Sai Prakash of the University of Virginia Law School about his new book called The Presidential Pardon, The Short Clause with a Long Troubled History. I read the book in galleys and blurbed it as the best book written on the pardon power, which I think it is. And so, Sai, I’m thrilled to talk to you about your book today.
Sai Prakash: Well, I’m thrilled to be here with you today, Jack.
So, the pardon clause in the Constitution in Article Two has become hugely consequential in modern times. Let’s just start off with what it says and unpack that, and then we’ll go from there. The pardon clause says that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
As you say in the title of your book, a short clause, but it’s hugely significant. Can you just kind of unpack the clause and then we’ll go from there?
Sure, sure. So, the pardon and reprieves were preexisting concepts. They existed in England, and the idea is they want the president to be able to prevent the imposition of a punishment, that’s a reprieve, and usually temporary, and then also be able to fully forgive the offense against the United States. And so, that’s the pardon.
There are other kinds of clemency that are thought to be included, even though they’re not separately listed, like a commutation or an amnesty. So, even though they’re not listed, they’re just sort of thought to be there. And then the further thought is it’s got to be against the United States, and therefore, it doesn’t cover state offenses of various sorts.
So, can you just explain briefly what a commutation is and what a clemency is and how that relates to pardons and why it’s thought to be included in the clause?
Yeah. So, I mean, clemency is just an umbrella term for any kind of mercy. And there’s a sense in which the clause is about clemency as a whole, precisely because it goes beyond mere pardons and reprieve.
So, reprieve, we talked about, it’s just a respite in the punishment. It could be, you know, we’re going to temporarily suspend your prison time to let you free for a couple of weeks or months, or it could be we’re not going to execute you right away. We want to think about whether we should execute you a little more carefully and thoroughly, and maybe we’ll eventually pardon you.
So, that’s reprieve. And the other stuff, you know, is a commutation is basically saying we’re not going to say that you didn’t commit the offense. We’re not going to act as if you didn’t do anything wrong.
We’re going to shorten your sentence. You know, you had a 10-year prison term. We’re going to make it five years.
You had a three-year prison term. We’re going to make it time served. And so, the idea is it doesn’t erase the fact that you were found guilty of something or that you’ve done something wrong.
It just means that we think you should suffer less for it. And so, typically, it just means that we’re going to let you out early, earlier than you otherwise would be let out. And of course, I guess it could be issued before you actually serve time.
Theoretically, someone could be convicted, you know, they could be in the courtroom, and the punishment could be five years. And then, as they’re being taken to the jailhouse, the president might commute that to three years. That’s certainly a possibility.
But typically, a commutation is issued to someone who’s already in jail. An amnesty is a situation where the president decides that many people at once who are found guilty of particular crimes should get some form of clemency, either a commutation or a full pardon. And they’re often issued in conjunction with rebellions.
The idea is, if you lay your arms down, we promise you that we won’t prosecute you. And the way we memorialize that is through a pardon that says, if you lay down your arms, you get the pardon. Which brings us to another type of pardon, which is a conditional pardon.
And the conditional pardon says, you only get this if you do X first, or you only get this if you continue not to do X going forward. And so, it’s like a contract, right? You have to do something or refrain from doing something in order to get the pardon.
And the pardon no longer is effective if you violate the condition, right? And so, that’s why even though it doesn’t talk about commutations or conditional pardons or conditional amnesties, it’s thought to have all those components in part because talking about a pardon power would have been understood to include all those subsidiary authorities, even though not expressly mentioned.
So, that’s an extraordinary array of ways that a president has discretion to alleviate the consequences of commission or possible commission of a federal crime. And just to underscore what you said earlier, the pardon power is limited to, it only applies to federal crimes, not state crimes, right?
That’s right.
And just briefly, before we move on, what is the meaning of the exception for the pardon power does not apply, it says except in cases of impeachment. What is the purpose of that?
So, I think it’s twofold. They wanted to make it clear that the president couldn’t stop an impeachment by pardoning the person, but they also wanted to make it clear that the president couldn’t pardon a conviction by the Senate. So, it turns out in England that the crown for a time could pardon people after they were convicted by the House of Lords and thereby prevent whatever punishment that the House of Lords had attached to the conviction.
And they want to make it clear, you know, impeachment is really left to the House and conviction is left to the Senate and the punishment as limited as by the constitution is left to the Senate. And the president can’t just say, well, you know, I think you should continue to serve notwithstanding the conviction by the Senate, or I think I’m going to lift the bar on future office holding that the Senate can apply to convictions, impeachment convictions. He can’t do any of that, right?
The Senate gets to decide what the punishment is without any presidential interference and the House gets to conduct its impeachment trial without the possibility that the president will cut that short.
Okay. So, this is an extraordinary grant of discretion to the president. I mean, it’s an astoundingly broad grant of discretion.
In the same article of the constitution that says that the president has a duty to take care that the law be faithfully executed. So, and the framers were somewhat skeptical, at least many of them were about this new entity, the presidency they were creating and about whether this power might be too broad or get out of control. So, why?
Why include the pardon power in Article II?
So, I think it reflects several features of that age, several strands of thought of that age. I think criminal law was quite harsh in the 18th century. And there was a thought that someone somewhere in the government had to have authority to mitigate the harshness of the criminal law.
Many crimes were subject to capital punishment, far more than today. And there was a thought that we needed to have someone who could dispense mercy, maybe better fit the punishment of — the circumstances of the crime. Because laws are written in general terms, but you might think more factors are relevant.
Maybe we don’t want the courts to wade through a seven factor test, but maybe we think the president or someone else who can issue the pardon can or should do that to possibly mitigate the sentence. They also thought that it was important to have a pardon power in part because nations suffered from rebellions from time to time. And they thought a well-timed offer of pardon could nip the rebellion in the bud, basically lead people to lay down their arms.
So, the president would say, I’m going to pardon you if you lay down your arms. The people lay down their arms and then the pardon vests. And they will do that.
They will only lay down their arms if they’re certain that they’re actually going to be pardoned. If they’re fearful that the president will renege, well, then they’re not going to lay down their arms. It’s an all out struggle because if anything less than that is, their heads are on the chopping block, so to speak.
So, I think they think that’s going to be a feature of our politics. And there are sort of rebellions of various sorts in the early years. And of course, we had a very big rebellion in the 19th century.
But their experience was there was the rebellion up in Massachusetts, Shay’s Rebellion, and they thought this might be a regular feature of politics. And so, it was necessary to have it. Other reasons for a pardon power would be to create some measure of allegiance to the state.
The state is both punishing you, but also showing some forgiveness. And people are often quite grateful for their forgiveness. And this is certainly an aspect of English policy.
And so, you document in one of your early chapters, despite those reasons, why the Anti-Federalists in particular were very worried about this provision. To me, like so many other elements of the Federalist, Anti-Federalist debate, the Anti-Federalists were more prescient in understanding how the Constitution was going to work. Am I right about that?
Tell us what the critiques and worries were about the pardon power.
So, the pardon power looks very much like the British Crown’s pardon power in the 18th century, but it looks rather dissimilar with the pardon powers that existed in the states. So, at the state level, the governors or the plural executive councils don’t have this sort of broad authority. What they instead have is some executives have the power to reprieve, with the legislature having the power to pardon.
Other state executives have the power to pardon, but not in cases of treason or murder. There, they have a power to reprieve, and presumably, the state legislature can pardon. And then, of course, sometimes what you have is a plural executive that’s wielding the pardon, which is itself a built-in check on its exercise, because there’s going to be some deliberation and thought to whether to issue the pardon of the sort that you can’t necessarily guarantee if one person is the one wielding the pardon pen.
So, they see an array of pardon wielders with lots of checks on the pardon. And when they look at the U.S. Constitution, the proposed U.S. Constitution, they don’t see any checking function there. They don’t see any requirement of getting the Senate’s consent.
They don’t see any offenses that are accepted from the pardon power, like, say, treason. And then, they fear that the president will sometimes act contrary to the Constitution, perhaps try to overthrow the Constitution, install himself as a monarch. And they think, oh, it’s weird that the president can basically pardon the people that might help him try to overthrow the government.
And they say, this will prevent us from finding out that the president’s involved in the conspiracy, and it will prevent us from understanding the full extent of the conspiracy. And this is what the anti-federalists say, but it’s hardly some fantasy. I mean, I think Hamilton himself, in the Constitutional Convention, proposed a pardon power that didn’t cover treason.
He doesn’t tell you that, you know, as Publius, because he’s not revealing himself to be Hamilton. And, of course, the convention records are sealed at that point, and no one knows, you know, what people proposed. But the point I’m trying to make is that even strong advocates of executive power had some trepidations about giving the president as broad a power as was ultimately found in the Constitution.
And so then why, I have to say, I’m a little surprised that it prevailed. Why did it stay in there? What was the clinching argument?
Well, I think there’s the clinching argument with respect to not having a treason exception is, well, I mean, are you not going to be able to pardon rebels, right, during rebellion? Then they won’t lay down their arms. You need to have that authority.
And we can’t rely upon Congress, because, you know, today Congress kind of meets all year round, but Congress is not always in session. And if they’re not in session, are you going to wait, you know, are the rebels going to lay down their arms for six months while they’re waiting to figure out what Congress is going to do? But I actually think the bigger reason is everybody is looking at George Washington and thinking he’s going to be the first president, and they think this is a man of virtue and restraint, and he won’t abuse it.
And there are several people who say after the Constitution was drafted, this presidency would look rather different if people didn’t imagine Washington serving as the first president. And they remarked that the presidency was created for a man. And then they lamented this fact, they tended to be anti-federalists, they lamented this fact, and they said, you know, the presidency is far stronger than it should have been, in part because it’s George Washington who’s going to be the first president.
And they say, of course, not every president is going to be a Washington, and so we should have perhaps, you know, imposed more constraints.
Yeah, let me just ask you about that, because that argument about Washington being the first president was made, as I recall, with respect to lots of different elements of Article II, and everyone was sure Washington was going to be the first president, was sure he would exercise power responsibly, but as you just said, it was obvious that there were going to be presidents after Washington. So was the idea that Washington would set the precedents and kind of fill in the presidency and the implicit constraints on the presidency, and that would be the model going forward, or what was it?
Well, you know, I should mention a third thing. There are lots of able advocates of executive power in the convention, James Wilson, James Madison, to a certain extent, Gouverneur Morris. They have an experience with weak executives at the state level and at the national level.
At the state level, the executives are described as being ciphers and not serving as a counterweight to the state legislatures, and they don’t want to repeat that. And at the national level, you know, it’s a plural executive that’s divided, distracted, and lacks competence and expertise because delegates, you know, it’s the Continental Congress that’s the executive, and people come and go in the Continental Congress and don’t stay very long and don’t develop expertise and aren’t always around to superintend, you know, the officers who do the business on the ground.
So there’s a concerted effort to have a stronger executive. The losers in that battle, I think, are still right to say that the executive was far stronger than it would have been absent Washington. I think there’s just a general tendency, Jack, to focus on the present and what were the problems we’re trying to avoid and, you know, think in the short term, even for something as important as a constitution.
And, you know, it’s speculation on their part. I think they’re right to think that this would have affected the outcome. You know, I tell my class, if we wrote a constitution after Richard Nixon resigned, it would look rather different than Article II, even though you might say Richard Nixon, you know, is an aberration and most of our presidents weren’t like him.
I still think, you know, the presidency would look much weaker if the constitution were rewritten after Richard Nixon’s departure from office.
Fair point. Okay. The meat of the book, the middle of the book, is a really wonderful, colorful history of the uses and abuses of the pardon power.
I don’t want to march through every one because I want to get to current controversies, but can you just give us some of the highlights, say between Washington and up through the Trump era, some of the highlights of the abuses and maybe especially how they started to increase starting in the late 20th century? Sure.
Sure. Yeah. Well, I have a chapter on Washington’s wielding of the pardon pen because I just wanted to see what he did and think about, you know, the precedents he established.
And Washington was very careful and very thorough. He would seek out the views of the prosecuting attorney and the judge about whether the person merited clemency. And sometimes they would say yes, right?
Because they thought the law was X, but maybe this person shouldn’t have been punished. That actually happened from time to time. And then another thing that was interesting is Washington would always list multiple reasons in the pardon itself so that he could justify it to the world that he was pardoning this person because pardons, you know, even though they benefit one or two people, they are actually documents written to the world.
They’re they’re written as if, you know, they’re public documents to be read by by people like you or me. So I was just interested to see what he did and to see if there were any controversies. Some people said there were, but I don’t think so.
I don’t think there were any major controversies during the Washington administration. That changes with John Adams. There’s a rebellion called the Fries’s Rebellion in Pennsylvania four or five years after the Whiskey Rebellion during the Washington administration.
And they’re opposed to a house tax, a windows tax, a tax on windows, a direct tax. And, you know, there’s a lot of praising of the French Revolution and praising of guillotines. And several people are tried for treason and they’re convicted.
And John Adams pardons them all. His reason, he says, is that they shouldn’t have been they weren’t guilty of treason. They were just guilty of riot.
And so they were overcharged. But he doesn’t commute their convictions. He actually pardons them.
And federalists are up in arms about this. Now, federalists are, you know, they’re part of the same party as Adams, but there there’s a sort of an arch-federalist faction within the federalist party, the high federalists. And they don’t like Adams.
They think he’s soft on France and they think he’s, you know, soft in various other ways. And they claim that Adams did this for political reasons. They think that Adams did this in order to secure more electoral votes in Pennsylvania and to possibly run with Jefferson on some sort of unity ticket.
Obviously, the second thing never happens. But Adams does get more votes, more electoral votes in Pennsylvania in the 1800 election than he does in the previous election. And, you know, people do speculate that that’s why he did this.
Certainly he would have known that many Pennsylvanians wanted these folks to be pardoned in part because they know these people and they’re related to them. And, you know, maybe it couldn’t have been a bad thing that this would make him more popular in Pennsylvania. Whether that was his motivation or not, it’s really hard to fathom.
It’s always going to be hard to figure out whether the president is doing so for political reasons. The next controversy is Jefferson and his pardon of some allies. Abigail Adams excoriates Jefferson for pardoning people who had libeled or slandered John Adams.
And it’s, you know, it’s all kind of a tawdry affair. During the Civil War, post-Civil War, Johnson wants to run as the Democratic nominee for president. He’s the accidental president because Lincoln is assassinated.
And he’s told by several people, if you issue an amnesty while the Democrats are meeting in New York, it will help your candidacy. And he issues an amnesty on the first day of the convention. And he’s told this is very helpful to him.
He doesn’t end up getting the nomination, but people speculate that he issued the amnesty precisely to influence them. He was unsuccessful, but there was the speculation. And then we will do, you know, what you said, we’ll flash forward to more controversial stuff at the tail end of the 20th century.
We’ve got the Iran-Contra pardons where Lawrence Walsh is still investigating the Iran-Contra affair. George H. W. Bush was the vice president of Ronald Reagan during that controversy. And George H. W. Bush issues pardons of people that the, you know, Iran-Contra prosecutor Lawrence Walsh is continuing to investigate.
And Lawrence Walsh says this is the continuation, the completion of the coverup, because we won’t know everything that we need to know about Iran-Contra. So it’s very controversial at the time, certainly in those quarters who thought that President Bush would be implicated by the special prosecutor. The next kind of major controversy, as you know, is the Clinton pardons.
There’s the Mark Rich pardon, but there’s also pardons of members of the FALN, a terrorist group related to Puerto Rico, and some pardons of Hasidim Jews in New York. The latter two pardons are thought to help Hillary Clinton in her Senate campaign. And there’s speculation that, you know, she’s going to do better with the Puerto Rican vote and the Hasidim vote by virtue of these pardons.
And it’s probably true that she benefited from them in some way. And then the Mark Rich pardon was, you know, a situation where his former wife donates, I think, to the presidential library for Bill Clinton, and then she asked for a pardon for her husband, and her husband gets one. It doesn’t go through the ordinary process in the Justice Department.
They don’t, you know, approve of this pardon. That’s normally how pardon applications get to the president, at least in years past. And so there’s a firestorm about it, and both chambers of Congress investigate, and there’s a U.S. attorney investigation up in New York about it, but nothing comes of it. I mean, I guess I should mention the Nixon pardon by Ford, right? That’s pretty important, and that was quite controversial, and there was a claim that there was a corrupt bargain. That’s not quite late 20th century, but it does tar Gerald Ford for a long time.
So if we flash forward to the Biden and Trump administrations, you know, Joe Biden issues a bunch of pardons at the end of his term. He pardons his son after insisting for years that he won’t do that. He pardons members of his family because he fears that they will be unjustly prosecuted by Trump.
It turns out that his brother’s actually being investigated by his own Justice Department, and that’s cut short. Those pardons are controversial because they extend for 10 years. They cover a 10-year period, and they don’t list the offenses.
The Hunter Biden pardon covers all offenses, criminal or non-criminal. The pardon of his brothers and, you know, sisters and in-laws is only non-violent offenses, and so it’s kind of weird that the pardon of the son includes violent offenses, but this one doesn’t. And then, of course, there’s these, you know, what I call sort of, you know, pardoning people that Trump might prosecute category of pardons, including the January 6th committee.
I think Mark Milley, and the former head of the CDC, what’s his name? Famous scientist.
Dr. Fauci, Dr. Fauci.
Yes, Dr. Fauci. There’s all these people that are pardoned at the end who Biden says will be targeted by Trump, and there’s obviously some truth to that possibility. We’ve seen targeting going on now, but it’s controversial nonetheless because it suggests, you know, some people look at that and say, you’re just pardoning people that are your ideological allies who went after the president in some way, and it raises the possibility that Trump might do the same.
For Trump, you know, the most controversial pardon was the January 20th pardon of the January 6th-ers. He had campaigned on this, but he had suggested he wasn’t going to pardon the violent offenders, but he comes into office and doesn’t want to figure out, I think, who’s violent and who’s not, and he pardons almost all of them. A few of them get commutations, like 20 main people get commutations, but everybody else gets a full pardon, and it’s quite controversial.
Republicans actually criticize the president. Democrats obviously do so as well. As your listeners or your viewers are well aware, Republicans are very loath to criticize this president, so it’s unusual that they’re criticizing him.
He had campaigned on this, and so it wasn’t a secret that he was going to do something. The breadth of it was a bit of a surprise, but it portends the possibility of presidents running on campaign promises to pardon one or more groups and then hoping to secure their votes, their votes and the votes of friends and family. Obviously, if you knew someone who had stormed the Capitol on January 6th, you would feel great gratitude to someone who pardoned your loved one.
Both Biden and Trump made promises of pardons when they were running for office. Biden’s related to marijuana. He was clearly trying to get the youth vote.
Trump’s related to January 6th. Maybe he thought he would get votes, but it was also partly a view that the January Sixers were political prisoners of some sort, which would have played to his base and perhaps got him votes as well. We can imagine presidents running on promises to pardon tax offenders and environmental polluters or whoever’s part of their coalition.
I think we’re going to see more of this. Since the January 20th pardon of the January Sixers, Trump’s pardoned contributors to his campaign, people who owe potentially hundreds of millions of dollars in fines. That taboo about pardoning someone who contributed to your campaign no longer exists, at least during this presidency.
One has to wonder whether that taboo has just been utterly broken.
More generally, both in his first term and this term, Trump has made it practice of giving pardons to friends or friends of friends or people that he thinks are ideologically consonant with him. It’s not just seeming quid pro quos in some instances. It’s just kind of ideological pardons, it seems, and hundreds of them in the first term and now in the second term as well.
You have a line, and you just alluded to this, you have a line in the book where you talk about where we are with the pardon power today that’s pretty arresting. I’m going to read it. It says, as they wield the pen, presidents advance their ideological and personal agendas, shore up their electoral bases, inflict psychic wounds on their opponents, and wreak real injuries upon the rule of law.
That’s kind of where we are today with the pardon power. I expect Donald Trump to issue many, many hundreds, if not thousands of pardons at the end of his term, kind of picking up on what Biden did to preclude investigations by the next administration into his administration. Not to mention who knows how many hundreds or thousands of pardons he’ll issue in the interim, because basically, as you’ve described, the president can just wield the pen and it happens.
It’s the perfect power for Trump, because there’s no intermediary. He can just bark the order and it happens. Just talk about that.
Is that where we are today? Is this now a feature of the American constitutional landscape?
It’s certainly going to be a feature of this administration. I think it’s going to be a feature of subsequent administrations as well. It’s just far too tempting to be able to hand out goodies to your allies and friends and potential voters.
Let’s focus for a moment on Trump. I think you’re right that the president likes to be able to exercise a power that Congress can’t constrain and that the courts are unlikely to police. The courts may interpret a pardon more narrowly than the president wants, but the solution to that is just to issue another pardon.
There have been cases out of the January 6th pardons where the administration wanted to read the pardon broadly, the courts refused to do so, and then the president just issued a broader pardon. The only way that the courts can constrain the executive is if the executive doesn’t like the breadth of a pardon and the executive is trying to read it narrowly and the courts say, you’re wrong. That’s the only way in which the president can lose.
If the president wants a broader pardon to someone, the president can unilaterally do that. I think this is a very tempting tool for the president. He can see the advantages of it.
You alluded to the ideological basis for some of these pardons. The president apparently loves to hear that the prosecutors who prosecuted someone were driven by politics or driven by personal agendas of various sorts because everyone, it seems, who’s applying for a pardon is saying, I was railroaded by a corrupt prosecutor, basically mirroring the language the president uses. They just say this, I assume, without regard to whether the person was corrupt and whether they were railroaded or not.
I highly doubt that the system is working so poorly that people are being routinely prosecuted and found guilty on thin or flimsy evidence. They’re playing to the idea that the president feels that he was a victim of a process, and they’re just using the same language. That’s ideological.
It’s biographical, but it’s certainly ideological. It says there’s something wrong with the system. It’s interesting.
He’s pardoned people that aren’t Republicans, either as a means of trying to lure them over or some sort of sympathy with them. I think he was mad at Eric Adams for not running as a Republican. There was no condition on the pardon that Eric Adams become a Republican.
The same thing with the Texas House member that he pardoned, and then he was angry when he decided he was going to run again as a Democrat in the House election.
Right. President Trump was a businessman. He thinks in transactional terms.
Everything he thinks about is in transactional terms, really, when you think about it. He thinks there’s a transaction here, but of course, there’s nothing in the pardon suggesting there’s any condition on it that you have to run as a or become a Republican. They don’t view it that way.
They may have sought a pardon, but they didn’t agree to any conditions. He’s going to often find that his expectations are going to be thwarted if he thinks that he’s going to buy loyalty just by issuing pardons.
It seems to me, and you suggest this in the book, that we’re on the verge of the pardon power getting out of control. Whatever norm-based constraints were on it have been dissipating starting in the late 20th century, certainly accelerating under Trump one and then Biden and now under Trump two. What is to be done?
Do you think that reform of the pardon power is appropriate? If so, how should we think about reform?
Jack, you wrote a paper with, I think, a student or a lawyer about how Trump had bypassed the ordinary process for issuing a pardon. Ordinarily, you apply for a pardon with the Department of Justice. They vet it for years.
It goes through one vetting process in the office of pardon attorney, and then it goes to some higher level, I think it’s an assistant or deputy attorney general, who then makes a recommendation to the White House, who then conducts its own kind of review. And what happens certainly during the Trump administration, but the Biden administration as well, is that more people just apply directly with the White House, because why would you go through this long process if you have connections inside the White House? And how do you get connections inside the White House?
Either you know someone in the White House, or you pay someone who knows someone in the White House. And so that’s introduced more cronyism into the process and less vetting into the process. I think you’re absolutely right that we’ve entered into a new era.
I don’t think this will change with, say, a Democratic president. It’ll be too tempting for them to issue pardons to members of their coalition. Biden ran on a marijuana pardon, and he issued the pardon mere months before the midterm.
That is to say, he waited until mere months before the midterm to issue the pardon for some inexplicable reason. I mean, it’s not inexplicable. That’s sarcasm.
He was trying to get votes. He issued the marijuana pardon on the same day he issued the student debt relief. Both were designed to gin up the student vote, the youth vote for Biden, for the Democrats in the midterms.
Whether that worked or not is hard to say. But I just think it’s going to be too tempting. But you could have internal reform where the president commits to not pardoning someone unless they’re recommended by the Justice Department.
That’s what Jimmy Carter said he did in the wake of the Mark Rich pardon. He said, I never pardoned anybody that the DOJ hadn’t approved of. And so you can imagine someone running on that.
And then the question is, are they actually going to follow through on that? Because presidents have all kinds of promises that they make, that they are sincere about when they make them. And then the reality hits a little differently once they’re in the White House.
The other alternatives to have some sort of constitutional reform, the Supreme Court as of now has cut off statutory reform by saying that Congress can’t constrain the effect of a pardon. And I think they would have likewise suggested that Congress can’t limit the offenses that would be pardoned. And so that just leaves a constitutional route.
And of course, you could imagine any number of reforms, maybe saying that certain offenses couldn’t be pardoned, maybe saying that Congress has to approve of pardons, or maybe saying that one or two chambers could veto a pardon. I also discussed the possibility that we don’t have enough pardons, that the system is sort of set up to make it more difficult to get a pardon, far more difficult to get a pardon now, I think, than it would have been in the 18th century, in part because there’s far more people now and more offenders. And so it’s just hard to get to the president’s desk for him to make that decision.
And so maybe, you know, there certainly are people, progressive folks who think that there should be more pardons, not less. And they would kind of look askance at reforms that only made it more difficult to issue a pardon and perhaps didn’t create another route for perhaps securing one.
Well, Sai, it’s an extremely timely book. And I’m sure it’s going to be widely read because I think there’s going to be more and more agitation about the pardon power and what to do about it over the next three years, especially in the last few months of the Trump administration, I predict. So thanks very, very much.
Thanks so much, Jack, for having me. This has been a fun conversation.
Thank you.
