Why do presidents have the power to pardon, and how is it typically used and abused? Sai Prakash and James Patterson discuss the pardon power’s origins in British law, its usefulness in ending rebellions, and the unfortunate tendency of more recent presidents to use the pardon power to reward friends and donors, protect underlings, or generate political support.

The Presidential Pardon by Sai Prakash
“The Personal Pardon Power” by Philip Hamburger, Law & Liberty
“Is It Too Late to Recover the Founders’ Presidency?” by Gary L. Gregg II, Law & Liberty

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello, and welcome to the Law & Liberty Podcast. My name is James Patterson, contributing editor to Law & Liberty. With me today is Sai Prakash. He is the James Monroe Distinguished Professor of Law at the University of Virginia, where he teaches Constitutional law, foreign relations law, and presidential powers. Today, we will be talking about The Presidential Pardon: The Short Clause with a Long Troubled History. It’s a recent publication on Harvard University Press, just came out. And when I was speaking to John Grove about possible subjects, this is the one that reached right to the top for me.

(01:21):

So Professor Prakash, welcome to the Law & Liberty Podcast.

Sai Prakash (01:24):

It’s great to be here with you and your listeners, James.

James Patterson (01:28):

All right. Well, where did the pardoning power for the president come from? What’s its origins for presidential use?

Sai Prakash (01:38):

James, every society has some method of mitigating punishments, either by forgiving the punishment or commuting the sentence. And so, you know, this goes back to Israel and India and Islam, but the immediate precursor is obviously Great Britain. The Crown and Great Britain had a pardon power that had exercised quite vigorously in response to many different stimuli. And then the colonial governors had it in America and then state executives had some authority in Revolutionary America. And so this was just something that they expected to be part of the system, either to be exercised by the executive or the legislature or the executive subject to some check.

James Patterson (02:23):

So is the pardoning power as unconstrained as it appears to be in the Constitution? There’s no advised consent constraint. There’s no judicial review of it. It’s really just out and out an executive prerogative, isn’t it?

Sai Prakash (02:39):

Yes. The Constitution does implicitly limit the pardon power in several respects. It can’t be for state offenses. It’s got to be an offense against the United States, and that’s always been understood to be a federal offense passed by Congress. It doesn’t cover impeachment, so the president can’t protect people from being impeached by the House or removed by the Senate. It doesn’t permit the president to pardon people in advance of the offense. That is to say, the president can’t say to you, James, “I’m giving you a pardon and it means that you can’t be prosecuted for any offense that you commit going forward after the pardon.” That’s a constraint. And it can’t be used for continuing offenses. If you are continually polluting contrary to federal law, the president can’t give you a right to continually pollute by virtue of the pardon power. So those are constraints, but within the pardon power, as you said, it’s very broad.

(03:30):

It covers all federal offenses and there’s no Senate check, there’s no House check, there’s no court check, and it’s all within the discretion of the president. And so unlike some of the other important powers, it is unchecked in that sense.

James Patterson (03:46):

You mentioned, and one of the ways that the pardon can’t function is that you can’t give someone a pardon for an ongoing offense. So at what point does a pardon become the refusal to enforce a law?

Sai Prakash (04:00):

Well, I think this is a deeply interesting question. I think there’s a sense in which, unless you’re pardoning people that you think are actually innocent, there is a sense in which a pardon always undoes a law, at least as applied to the person. So suppose I’m the president and I pardon someone who’s facing a 10-year sentence and I give them a two-month sentence. Well, the law provides a punishment. The judge has imposed the punishment. I am changing the punishment. It might well be that the statute that Congress wrote provided an 8 to 10-year punishment, I’m now making it two months. That is, in a sense, not carrying out the law. So unless you think the pardon is only there for innocent people, which no one thinks, the pardon is essentially undoing what the statute provides in some sense. So I think it’s one of the interesting questions about the pardon power.

(04:54):

How does it fit with the Take Care Clause obligation? The president has a power to issue reprieves and pardons against offenses against United States. That’s the pardon clause. And then it also says later in the Constitution that the president shall take care that the laws be faithfully executed. How do you square those two clauses? And the way we do for the most part is to say, well, the president doesn’t have to faithfully execute the law when he issues a pardon. The person has been convicted of a crime and has been sentenced to a punishment and the president doesn’t have to execute the punishment, even if the president admits that the person’s guilty. So there’s a fundamental tension there that the Constitution doesn’t resolve, but it’s a fundamental tension that goes back to Great Britain, that the Crown had a duty to execute the law, but it also had this pardon power.

James Patterson (05:40):

This might be a little historical, more than legal or constitutional, but were there Anti-Federalist critics of the pardoning power during the debate over ratification?

Sai Prakash (05:50):

Of course. The pardon power was contested at the Philadelphia Convention. The Philadelphia Convention is the convention of delegates from the states that drafts the Constitution. And there were people there saying we shouldn’t be giving this broad power to the president. They’re not Anti-Federalists at this stage, they’re just people who don’t like this particular feature of it. There are even proponents of a strong president that want to limit it. Alexander Hamilton does not want the pardon power to cover treason, but the clause that makes its way into the Constitution is not restrained in these ways because I think the majority of the convention believes that it’s more useful to have a broad pardon power, one not constrained by the Senate or by other limitations because they think it’s sometimes necessary for there to be quick, broad pardons and only the president they think is structurally capable of doing that.

(06:39):

Congress can’t issue broad pardons quickly. It’s not always in session and it’s a big ponderous and lumbering body. It’s just hard for them to act quickly. The president is constituted to do that. So they decide not to put constraints on it. When it gets sent to the states, plenty of Anti-Federalists say there’s a problem with this. They say that there’s no constraint on the pardon power. The president might try to subvert the Constitution, might get people to help him. He then might pardon them, and we might not ever know that he was involved in this conspiracy. So they have dark ideas of what a president might do with the pardon power, and they voice these over and over again. And the Federalists, the folks who support the Constitution, don’t say that this is all nonsense and we have nothing to worry about. They know that a pardon power can be abused because they have a sense that all powers can be abused.

(07:28):

But their view is that on balance, it’s better the way it is than with restraints. And so that they’re not denying that there are issues with it. They’re just denying that they should be corrected because the pluses outweigh the minuses, so to speak, of a pardon power. And because the Constitution, as your readers, your listeners know, is an all or nothing proposition, it’s treated that way by conventions. States aren’t allowed to say, “We’ll adopt the Constitution only if you change the pardon power.” They adopt the Constitution and just propose amendments, many states propose amendments, but their ratification of the Constitution is not premised on the adoption of those amendments. And so there are some amendments proposed, but they never make it into our Constitution. Neither James Madison nor the Congress proposes amendments limiting the pardon power in the Bill of Rights that go to the states.

James Patterson (08:20):

So early in the history of the United States, we find use of the pardon power pretty liberally by George Washington, who essentially, like so many other things that he does while president sets up a kind of expectation or a custom. And so what was this major event that led him to use the pardon power so liberally?

Sai Prakash (08:40):

So he’s president for eight years. He’s issued pardons for some of those years, and he’s very careful and very deliberate about using it. He always seeks the advice of many people. And he always publicly declares what his reasons are for the pardon. And he means for the public to know that it’s not just arbitrary power. There’s always a reason behind it. The event that you’re talking about is the Whiskey Rebellion in Western Pennsylvania, where Congress has enacted an excise tax on whiskey. Western farmers are rather upset about it. They don’t want to pay the tax. Obviously, it’s going to make it more difficult to sell the whiskey if there’s an excise tax on it. And so they start obstructing the enforcement of the whiskey excise tax and they kind of interfere with the marshal and they interfere with the tax collector. And the administration decides to send the militia to quell this incipient rebellion or this rebellion.

(09:37):

And Washington heads out with the militia to a certain point in Pennsylvania, and then he hands over a command to Henry Lee, the governor of Virginia, who’s been summoned, and he tells Henry Lee the issue to make promises of pardons as a means of conciliating those rebels. Every government faces rebellions from time to time, and one way to quell them is to offer them a pardon if they lay down their arms. And so this is commonly done in England. It was done in Shays’ Rebellion, and it’s done now in the Whiskey Rebellion, of course, will be done in the Civil War as well. So he offers pardons, Lee grants pardons, Washington grants further pardons. And it’s all … The idea is, look, let’s make up with each other. You reconcile yourself to federal authority. We don’t prosecute you, and we go back to a peaceable, loving relationship with you.

(10:30):

And we know that if we don’t do that, your option is all or nothing. You’re just going to fight to the death because if we don’t give you a pardon, you might well be executed if we catch you. So the pardon is a powerful tool meant in part to end rebellions, and it serves something like that function in the Whiskey Rebellion. And it is a broad pardon to all those people who participated in those tumults and disturbances.

James Patterson (10:55):

And then on a scale that’s really even beyond the Whiskey Rebellion or the conditional amnesties of Abraham Lincoln. I mean, this is the kind of thing that was in the nightmares with the most paranoid Anti-Federalist, right?

Sai Prakash (11:07):

It’s hard to figure out how many people were benefited by the pardon because no one at the time is going around to people asking them, “Did you do this? And therefore, did you benefit from the pardon?” It’s possible that some people are benefiting from the pardon whom the authorities don’t know participated in these activities, but if you’re not prosecuted, you don’t even need the pardon, right? It’s only if you’re about to be prosecutor, you’ve been convicted that you need to pull out the pardon. But it’s certainly a broad thing and it sets the stage for the pardons that follow. I think probably the pardons by Lincoln and Johnson are broader because there’s more people by the time of the Civil War. And there’s certainly lots of officers who are participating in the Civil War, both civil and military in the South, and obviously some people involved in rebellion who are in the military who are involved. So I don’t know what the largest amnesty was, but I would suspect it’s the combined effects of the Lincoln and Johnson pardons.

James Patterson (12:04):

But I mean, what other choice did they have? As you point out in the case of Washington, otherwise you would’ve been forced to have to deal with maybe guerrilla war or mass executions. As bad as it seems, this is really the least bad option.

Sai Prakash (12:19):

I agree with that completely, James. I will say that during the next rebellion in the Adams administration, the Fries’s Rebellion, which is another rebellion over tax. Americans don’t like taxes, right? There’s the Tea Party and then there’s these two rebellions about taxes. John Adams says that George Washington shouldn’t have pardoned those people. And his thought at the time is, “Well, if you keep on pardoning rebels, there’ll be more rebellions because they win either way. If they prevail in the rebellion, they get what they want. And if they fail, they get pardoned.” So there are people who are saying that you can’t pardon everybody in a rebellion. It’s a function of whether you think you can militarily subdue them and whether you want to. So I think in the context of the Whiskey Rebellion, Washington could have militarily subdued the folks who were engaged in it, but he thought it was better not to. He had some mercy in him, and that’s why he did it.

(13:16):

But from the perspective of John Adams four years later, he’s thinking not of that moment. He’s thinking, well, what signal does this send to rebels that they always might think they would get a pardon and therefore they’re more willing to engage in a rebellion because they expect a pardon. And I’m not saying he’s right, but you could see why there would be critics of a mass pardon. There were a lot of critics of Lincoln and Johnson in the Civil War because some people wanted the rebels to be hanged and they weren’t going to be hanged if they got a pardon from the president.

James Patterson (13:49):

Yeah. It’s hard to read newspapers with fatalities in them and then want to give the people that caused these fatalities clemency.

Sai Prakash (13:57):

Oh, of course. Yes. And so many Americans died in that conflict. And if you’re from the North, you might think it’s because these guys were traitors to the Constitution and they should be punished, not merely legislatively, but criminally in some way.

James Patterson (14:12):

At the end of Chapter Five titled “A Tale of Two Clemencies,” you refer to the, I think it’s the Biden and Trump pardons. You say that one set of pardons would block future prosecutions, the other set overturned existing convictions. Each side pointed a finger at the other. Truth be told, both sides had a point. What point is that?

Sai Prakash (14:32):

Maybe it’s too subtle because you’re asking the question, but I do think that both sides are weaponizing prosecutions and are being perceived as doing so. So I think the Biden folks think that they prevented Trump from prosecuting these folks because they were fearful that Trump would weaponize prosecutions. I think that there’s some reason to think that is what’s going on. It’s a bad look for the president to talk about going after your enemies and I am your retribution and I am your vengeance. It sounds more like Batman than it does a president. It just sounds kind of dark and I think sends the wrong signal to people. So I think they were worried about those prosecutions. I think those have come to fruition in many respects. I think that some of the prosecutions against the presidents, many people think that they reflected some kind of politicization of the prosecution process, both at the state and federal level.

(15:30):

And obviously people will disagree about the perception that the other side has, but I think they both are right in the sense that I think both parties are indulging in prosecutions that reflect partisanship or personal advancement more than they reflect the dispassionate analysis of the law and facts.

James Patterson (15:50):

And this really does point to a broader change in the perception that people have of executive power, that it’s more discretionary. I mean, here we are speaking today. The Court has ruled against emergency measure tariffs, right? And in this respect, kind of running contrary to, I think, a lot of the feelings of dedicated partisans for Donald Trump, is perhaps the pardon power sort of latched up to this notion of a more prerogatively driven presidency.

Sai Prakash (16:20):

Yeah. I mean, as I discussed in the book, James, I think we’re entering into something called pardon dystopia where pardons are used primarily as instruments of partisan or personal politics and not instruments of mercy. Of course, pardons could still be issued for mercy, but more often people are going to view the pardon as a measure designed to advance the partisan interest of the president or the president’s personal interest in some way. And that’s very corrosive, but unfortunately I think it’s true. Why do I think it’s true? I think there are four elements to this pardon dystopia. First, presidents are now running for office promising pardons, and they’re doing so for electoral purposes. Why does Joe Biden promise pardons for marijuana users? He believes it’s electorally useful to get the youth vote. He waits two years to issue the pardon after making the promise. It’s right before the midterm election on the same day he issues student debt relief.

(17:17):

It’s just designed to get the youth vote because he could have issued that pardon much earlier. But the point is he’s making this promise to get votes. I think Donald Trump makes a similar sort of promise with respect to January 6 folks, and I think he’s appealing to his base to show you, I’m going to fight fire with fire by pardoning these people. I think it’s bad for presidents to run on a promise of pardons. I don’t think that’s a political thing that you should be wielding and promising to your base because I could see it having all kinds of issues. Vote for me and I will pardon your uncle, vote for me and I’ll pardon your cousin or your friend. And I think the president has the authority, but I think it’s misuse of authority to do so for political purposes. The second thing is what I call policy pardons, where there’s no promise of a pardon, but the president just doesn’t like the statute.

(18:09):

Joe Biden evidently doesn’t like the death penalty. He commuted lots of sentences from death to life. And that’s fine that Joe Biden has that policy or has that view, he’s entitled to it, but the statutes of the United States have a death penalty. And I don’t think it’s the president’s place to just change the punishment to a different punishment because he doesn’t like the penalty. So imagine that you have a president, say, John Smith, who thinks that the tax fines are too high. He thinks people shouldn’t pay penalties if they don’t file their taxes. And he just says, anybody who doesn’t file their taxes should pay them, but I don’t think any of them should be fined. I’m going to pardon all those things. He’s just basically changing the law as to the fines that accompany taxes. And presidents have lots of policy views about the appropriate sanctions that ought to attach for violating the law, but I don’t think the pardon power is an instrument of just changing all those statutes to reflect their wisdom in a downward way.

(19:09):

That’s the second element. The third element is shielding your political allies—your allies from the consequences of their actions. And so the pardon by Joe Biden on January 19 of January 6 committee members and Mark Milley and the former head of the CDC, Anthony Fauci, and others, was obviously designed to protect them from Trump prosecutions. And of course, you could tell a story that was needful in some way. On the other hand, you could see why a president might want to pardon all his ideological allies as he goes out the door because he wants to prevent the next administration from prosecuting them when they’ve done something wrong. And I do fear that we’re going to have situations where presidents tell people, “Do what I tell you to do, and I will pardon you at the end, and you will not be prosecuted for doing what I tell you to do.

(20:00):

Now, what I’m telling you to do is legal, right?” The president will say that, but they won’t necessarily think so, and that’s why I’m going to pardon you. That’s corrosive, I think, and it creates bad incentives. And then the final thing I think is the presidents are now … I think the doors opened now to pardon the folks who contribute or do business with the president, and I think that’s problematic. There was a severe adverse reaction to the pardons by Bill Clinton of Marc Rich and people who would be helpful to Hillary Clinton’s Senate campaign. And I think the reaction was a healthy one. It’s wrong for the president to try to help either himself or his spouse secure election or reelection through issuing pardons. That’s what was going on. These people are in New York, right? There’s a New York Hasidic Jew vote.

(20:51):

There’s a New York Puerto Rican vote. It’s all about her campaign. And the Marc Rich pardon is about rewarding a donor. And now Trump’s doing similar things, and I think it’s corrosive of public trust and institutions to think that people who donate are more likely to get a pardon. And of course, if you are someone who seeks a pardon and you have means, why wouldn’t you donate? You do think, I think correctly, that donating will get the attention of the president, it may not get you a pardon, but you can’t get a pardon from the president unless he sees your application and donating or doing business with the president makes it infinitely more likely that the president will think about whether to give you a pardon than if you don’t. You or me, Joe Schmoes, who don’t have millions of dollars, if we’ve committed an offense, it’s going to be much harder for us to get the president’s attention.

(21:45):

Because as we all know, the president’s got a very busy agenda and pardons are only one tiny part of that. They just don’t have the time to consider all the pardon applications that are sent to them.

James Patterson (21:58):

Yeah. You actually have a whole chapter on the pardoning industry. Of the things that I read, it was the one that I knew the least about, right down to the fact that I didn’t know it existed. And then as I started to read, it’s like, “Oh, of course this exists. Why wouldn’t this exist?” And so what is this 2-tiered pardoning system that you describe?

Sai Prakash (22:19):

Sure, James, that’s a great question. So there’s an ordinary process of applying for a pardon from the Department of Justice, and they have all kinds of restrictions on who can apply. And they’re actually quite restrictive. You usually have to serve a couple of years before you apply, which technically means you can’t apply if you’re innocent according to their rules. You can apply, but it’s like you need special circumstances. And that’s a very arduous and laborious process because the Department of Justice, the Office of Pardon Attorney, then seeks the opinion of the prosecuting attorney and other people about whether they should grant the pardon. Eventually, a decision is made after a long and laborious process, careful process. That recommendation is made to the Deputy Attorney General. The Deputy Attorney General then reviews all the recommendations by the pardon attorney. They make their own recommendations to the White House, and then the White House somehow structures these applications and gives them to the president because they don’t give them all to the president.

(23:17):

And then the president makes a decision. That’s a process that takes years, right? Ordinarily, it takes years. That’s one process. The other process is you know someone in the White House, you know the president, you have connections to the White House, you know someone who knows someone in the White House, you apply directly to the White House, right? You pay a lobbyist who has connections to the White House. They give the application to someone who’s their connection in the White House and that person hopefully sees it to the president’s desk. And you short circuit that entire process at DOJ and you make it more likely you’re going to get a pardon because you have some advocate in the White House who’s connected to your lobbyist. And so that’s the 2-tiered process, right? And it’s not unlike other things in life, if you have connections, it’s just going to be easier for you to get a pardon.

(24:08):

And lobbyists, as you know, have connections. That’s what they’re selling to their clients. And so the book describes lobbyists charging millions of dollars to help secure a pardon. And sometimes there’s a payment just for lobbying. Other times there’s a payment for lobbying and a success fee. So maybe you pay someone a million dollars and if they succeed, you pay them two million more. But in all events, you pay them a million dollars. We don’t know what people are being paid, but newspaper accounts are quoting a million or two or more. Someone asked for $30 million, they didn’t get it. The other thing that you have to realize is that people are avoiding fines of hundreds of millions of dollars. So suppose, James, you’re looking at a hundred million dollar fine. It might make a lot of sense to hire a lobbyist for 20 million to avoid that fine.

(25:00):

Because if you get a pardon and you’ve only paid $20 million, that’s a bargain compared to a hundred million. And so given some of the fines that people are facing, and the jail time, they’re happy to spend four or five million dollars. It’s a sound investment given the expected value of the pardon process. They may not get it, but it’s still worth the chance. So $20 million, if you owe $500 million is totally worth it, if there’s a good enough chance of you succeeding. So that’s why there’s eye popping figures being thrown about. Obviously you and I would never pay that much because we don’t have it, but we’re not facing $100 million fines and we don’t have a wealth of $200 or $300 or $400 million. I’m assuming you don’t. I know I don’t.

James Patterson (25:48):

No, I definitely do not. It doubles the injustice, right? Because on the one hand, you have the person who should be prosecuted and isn’t. And then you have the nation increasingly responding to wealth as a source for justice rather than to law.

Sai Prakash (26:07):

It does. And you’re right that the wealth matters on the front end for whether you’re indicted or whether… Your lawyer, if you’re wealthy enough, can try to convince the prosecutor not to go forward. If you’re wealthy, you hire a good lawyer who then defends you and then increases the chances you’re not convicted. And if you’re wealthy, you hire a lobbyist who then tries to get you a pardon. So wealth does matter across all these things. And this lobbying for pardons makes the situation worse. I will say this lobbying for pardons goes back to Great Britain. It’s not an American phenomenon. People close to the king often sold access to the king. And so it’s not just an American phenomenon. It existed in Great Britain. And there are stories of pardons or lobbyists for pardons going back to the Lincoln administration. I don’t know if there were earlier stories, but they definitely go back to the Lincoln administration in this country.

James Patterson (26:59):

Yeah. Now that you say that, I have a question for later, but I’ll ask it now. Do other nations employ the same kind of pardoning power like France or Poland in modern constitutional states? Or you mentioned at the beginning, that there are these multitude of traditions from Indian to Islamic to Jewish to Christian. Do contemporary nations have similar ones or is that something you’re not really working on?

Sai Prakash (27:22):

I didn’t really look at that too much, but there’s going to be variation across nations and across the United States, right? Every state has some kind of pardon authority, but sometimes it’s given to the governor, constrained by the legislature. Sometimes it’s given to a pardon board where the governor may appoint but doesn’t actually make the decision. And so I think the federal constitution is fairly unique and different in giving the president rather broad authority, unilateral authority. I think the states fracture the pardon power and limit it far more than the federal level. And I’m just not as familiar with what states are doing, but as many of your listeners may know, obviously other states have pardon powers. President Trump asked the president of Israel to pardon Benjamin Netanyahu, which I took to mean that the president of Israel has a pardon power and can exercise it to benefit Netanyahu.

(28:17):

I don’t know if there are criteria that he has to satisfy first, but people get clemency elsewhere. It’s a feature of the system that nations and substate units believe that there has to be some way to eliminate or mitigate the punishment, eliminated if the person’s innocent, eliminated if it’s necessary to reconcile them to the nation, mitigate it if it just proves that this person doesn’t merit the punishment that we thought they merited upon reflection because they’ve been exemplary in prison or otherwise.

James Patterson (28:50):

So you mentioned the officer of pardoning attorney and the Department of Justice. So what is the size of that office? How many people work there? I ask because you also mentioned that, of course, pardoning is a very small part of a president’s day. So I must imagine budget outlays for such an office are relatively small, right?

Sai Prakash (29:09):

I don’t know the number. I think the number is far lower than it was before because a lot of the … So I think today, the locus of pardoning authority, it’s fair to say is in the White House under this administration. There still is a pardon attorney, but there’s also something called a pardon czar in the White House, and that’s because President Trump is acutely interested in issuing pardons, and so he wants to have a greater control over it and less control in the bureaucracy. And so more pardoning decisions are just being run through the White House rather than the Department of Justice. As a result, I think the Department of Pardon Attorney is far smaller now than it was a year and a half ago when President Biden was in office because some of those people don’t want to work for the president and that just reflects their views, but I think there’s just a sense that the pardon attorney has less of a say in who gets pardoned if more people are directly lobbying the White House and they’re issuing more pardons.

(30:08):

To make another point, I don’t think a portion of the day is spent reviewing pardons. For most presidencies, they’re not thinking about pardons at all. It’s episodic. Occasionally they think about pardons. In the past, it was, “Let’s issue pardons on days of thanks like Thanksgiving or days of celebration like Christmas.” And that would require them to think about who to pardon before those days. But it wasn’t as if there’s an hour every day devoted to pardons. I don’t think there’s anything like that. It takes a very small part of the president’s day. A presidency, very little of it is spent on clemency decisions by the president, I would venture to say. Some amount of time is being spent, but a lot of it’s tied to these holidays, a lot of it’s episodic. And then quite frankly, a lot of it’s at the end of the administration.

(30:55):

Before they leave, they often act on a backlog of pardons and they make the more controversial decisions that they didn’t want to make earlier because they didn’t want to be criticized about it. It’s easier to pardon someone as you’re leaving the door or leaving the White House because now the attention’s all on the new president and not on what you did.

James Patterson (31:14):

There’s a Nicaraguan president who was pardoned on December 1, 2025. I thought that was remarkably early because it was a pretty controversial one, too. This was a person we actually sought after to place in jail. And now we’re just letting them go?

Sai Prakash (31:38):

Yeah. I don’t understand why the president did that. One of the interesting features, James, of some of the people who’ve been pardoned by President Trump is a claim that they were persecuted by prosecutors and persecuted by the Biden Justice Department. And so a lot of pardon applications to the president now claim that the person was persecuted in some way because I think they think that will resonate with the president. And of course, if you believe some injustice has been visited upon you, you’re more likely to sympathize with other people who claim the same injustice. And my recollection is this ex- leader claimed to be persecuted, and I guess that resonated with the president. I don’t otherwise know why the president did it.

James Patterson (32:17):

What are some possible reforms, if any, possible for the pardon power? I mean, certainly such reforms would require a constitutional amendment, right?

Sai Prakash (32:26):

Yeah. The court has said that Congress can’t regulate the effect of a pardon. I think it follows that they think that Congress can’t limit the pardon to certain offenses, like say, exclude out murder or treason from the pardon power, which means Congress can’t pass the statute saying the president can no longer pardon murder or treason. So, they’ve kind of said, I think for good reasons, that Congress just can’t regulate how the president issues a pardon, which means that if you want to constrain the presidential pardon power, you kind of have to pass an amendment to the Constitution. I propose several amendments. I think you could imagine that a pardon doesn’t take effect until both chambers agree to the pardon. That would have the effect of making it very hard to get a pardon because it’s very hard to get Congress to agree on anything, especially given the Senate filibuster.

(33:17):

So I think that would mean that the pardon power is radically circumscribed if you required the president to get the consent of Congress first. Maybe a better approach would be to say the president can provisionally pardon someone. If neither chamber disapproves of the pardon within 60 days, it takes effect, which is effectively giving each chamber a veto over the pardon that’s exercisable within 60 days. I think that’s a way of getting at the sense that maybe particular pardons are inappropriate in some way and giving one House the ability to stop them. I think that’s a useful restriction because if one chamber disagrees, that perhaps suggests that it is inappropriate what the president did. Now, of course, it might reflect partisan considerations. And so this power could be abused, but of course we’re also talking about a power that could itself be abused by the president.

(34:11):

And so we’re not going to escape from politics by having the House or Senate check these things, but I think it still might be useful to say we know that Congress can be partisan just like the president, but it’s meaningful when one chamber says that this pardon shouldn’t stand and then it wouldn’t stand.

James Patterson (34:30):

The book, The Presidential Pardon: The Short Clause with a Long, Troubled History, the author, Sai Prakash, thank you so much for coming onto the Law & Liberty Podcast.

Sai Prakash:

Thank you, James. Thank you to all your listeners, too.

James Patterson:

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts, and visit us online at www.lawliberty.org.