Presidential pardons have been in the news as of late, thanks to some bold moves by Presidents Biden and Trump. Ever wonder how pardons started and how they’ve evolved? My friend Jeff Toobin has a new book out called The Pardon: The Politics of Presidential Mercy that could not be timelier. I asked one of the smartest legal minds of my generation why he zeroed in on this centuries-old practice, and what he discovered in the process.
Katie Couric: How did the whole idea of presidential pardons start?
Jeffrey Toobin: It was basically Alexander Hamilton’s idea at the Constitutional Convention in 1787. Hamilton wanted a strong chief executive who could dispense mercy but also exercise political power, as the King of England did, by using pardons.
You point out they were directly modeled on the royal prerogatives of the Church of England. In retrospect, is the presidential pardon a mistake?
I struggle with this question, but my answer is no. There will always be pressures — in all branches of government — to put more people in prison. But the pardon is a chance to let people out — and more people should be out. I just wished presidents used the pardon power in a better way.
You argue that Ford pardoning Nixon, ostensibly to “bring the country together,” set a bad precedent. How so?
For starters, it failed on its own terms. It didn’t bring the country together; it just added Ford to the list of Watergate villains. But in a larger sense, it sent the message that powerful people would never be held accountable, and that’s a message that unfortunately has endured.
How has the presidential pardon been abused as the years have gone by? And are presidents of both parties guilty?
There have been bad pardons by presidents of both parties. Bill Clinton’s pardon of the fugitive Marc Rich was a low point, and so was Joe Biden’s pardon of his son Hunter and five other Biden relatives. George H.W. Bush’s pardon of the Iran-Contra defendants was wrong, in my view, but there is no question that Donald Trump’s pardons in both in first and second term were the worst in American history.
What, in your view, was the most egregious presidential pardon?
Without doubt, it’s Trump’s pardon of the 1,500 rioters at the Capitol on January 6, 2021. They were unrepentant criminals, many of them violent, who attempted to overthrown America’s most important election. Those pardons will endure as a stain on American democracy and American history.
A pardon cannot be overruled or challenged in the courts. Is there any chance of this being reformed?
It would take an amendment to the Constitution, which is nearly impossible to do.
What was the most important thing you learned during the course of researching this book?
Because there is no check and balance on the pardon power, pardons operate as X-rays into the souls of presidents. Presidents reveal themselves by those they decide to pardon — and not to pardon.
