The Presidential Pardon Power, from Biden and Trump to Ancient Kings

Stanford Legal

Presidential pardons are in the headlines again after President Joe Biden’s pardon of his son Hunter. But the vast majority of presidents have used this awesome power, which was enshrined in the Constitution at the founding of the country and dates back to 7th Century English monarchs. What are the issues at play with modern presidential pardons? What does history tell us about this practice? Our guest this week is Stanford Law Professor Bernie Meyler, a scholar of British and American constitutional law and of law and the humanities and author of the book Theaters of Pardoning. She joins Pam and Rich for a discussion of high-profile pardons like Hunter Biden and Donald Trump’s allies to broader issues of mercy, justice reform, the implications of pardons in polarized politics, their historical roots, and ideas for reform.

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Links:

• Bernadette Meyler >>> Stanford Law page

(00:00:00) Chapter 1: The Origins and Evolution of the Pardoning Power
Hosts Pam Karlan and Rich Ford welcome guest Bernie Meyler. The discussion opens with a look at the historical roots of the pardoning power, tracing its lineage from the divine rights of kings in England to its adaptation in American democracy. Key examples include early English judicial pardons, debates at the U.S. Constitutional Convention, and George Washington's use during the Whiskey Rebellion. The chapter closes with insights into President Trump's controversial approach to pardons, likened to monarchical practices of wielding power above the law.

(00:05:04) Chapter 2: Legal Boundaries and Contemporary Issues in Pardoning
This chapter examines the legal limits of the president's pardoning power, such as the inability to pardon state crimes, and the various forms pardons can take. The conversation pivots to notable recent pardons, including Hunter Biden's, sparking a discussion about blanket pardons versus specific ones and their implications on guilt and historical accountability.

(00:14:24) Chapter 3: Pardons, Polarization, and Public Perception

The discussion shifts to the broader context of pardons, their declining use, and the influence of public opinion. The hosts analyze the risks of granting pardons and compare historical uses of the power, such as Washington’s Whiskey Rebellion pardons, to modern examples like January 6th.

(00:21:02) Chapter 4: Reforming the Pardon Process in a Divided Society

The group explores potential reforms to the pardon process, suggesting ways to make it more democratic and transparent. Meyler discusses citizen panels and their role in ensuring fairness, while reflecting on the challenges of polarized politics.