Brian Kalt of Michigan State College of Law and Jeffrey Toobin, author of The Pardon: The Politics of Presidential Mercy, join Jeffrey Rosen to explore the founders’ vision for the pardon power and the use of the presidential pardon throughout American history—from Thomas Jefferson’s pardons to those issued by Presidents Biden and Trump.
This conversation was originally streamed live as part of the NCC’s America’s Town Hall series on March 27, 2025.
Please follow We the People and Live at the National Constitution Center on Apple Podcasts, Spotify, or your favorite podcast app.
Today’s episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Kevin Kilbourne and Bill Pollock. Research was provided by Yara Daraiseh, Gyuha Lee, Samson Mostashari, and Cooper Smith.
Participants
Brian Kalt is professor of Law & Harold Norris Faculty Scholar at Michigan State University College of Law. His books include Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment and Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. He is also co-author of the National Constitution Center’s Interactive Constitution explainer on the 25th Amendment.
Jeffrey Toobin is chief legal analyst for CNN. He is the author of 10 books, including Homegrown: Timothy McVeigh and the Rise of Right-Wing Extremism, True Crimes and Misdemeanors: The Investigation of Donald Trump, The Oath: The Obama White House and The Supreme Court, The Nine: Inside the Secret World of the Supreme Court, and Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election. His new book is The Pardon: The Politics of Presidential Mercy.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Jeffrey Toobin, The Pardon: The Politics of Presidential Mercy (2025)
- Brian Kalt, Constitutional Cliffhangers (2012)
- Nixon Pardon (Gerald Ford Presidential Library)
- Trump v. United States (2024)
- Alexander Hamilton, The Federalist No. 74, New York Packet (March 28, 1788)
- Abraham Lincoln, “Proclamation 124—Offering Pardon to Deserters” (March 11, 1865)
- United States v. Klein (1871)
- Ex parte Garland (1866)
- Andrew Glass, “Bush pardons Iran-Contra felons, Dec. 24, 1992,” Politico (Dec. 24, 2018)
- Presidential Records Act
- Donald Trump, “Granting Pardons and Commutation of Sentences for Certain Offenses Relating to the Events at or Near the United States Capitol on January 6, 2021,” (Jan. 20. 2025)
- Jimmy Carter, “Proclamation 4483—Granting pardon for violations of the Selective Service Act, August 4, 1964, to March 28, 1973,” (Jan. 21, 1973)
- Pardons granted by President Barack Obama
- Pardons granted by President Joe Biden
- Pardons granted by President Bill Clinton
- Pardons granted by President Donald Trump
Excerpt from interview: Brian Kalt explains the evolution of the pardon power in the 19th and early 20th centuries.
Brian Kalt: Yeah, so Andrew Johnson picked up where Abraham Lincoln left off. Initially, it looked like he wouldn't. Abraham Lincoln was criticized somewhat for being maybe too merciful. Andrew Johnson was even more so. Because Lincoln's goal was to reunite the country, it looked like Johnson's motive was more restoring the antebellum power structure in the South by getting all of the, not just the foot soldiers as Lincoln had pardoned, but all the leaders too. And initially, people talk a lot about the Johnson impeachment and how he was acquitted by only one vote. There was an earlier attempt to impeach him that did not pass the House, although it came close. And one of the counts against him was for abusing, overusing the pardon power. And that sort of got folded into the larger struggle against him and Reconstruction playing out. Another trend I think that was interesting in the post-Civil War era was presidents got kind of tired of all these people coming and asking them for pardons because we didn't have this big federal bureaucracy like we do now. And presidents used to, the typewriter hadn't been invented yet. These things had to be sort of done in a more manual way.
And so the Office of the Pardon Attorney currently does this, but presidents starting in the 1870s sort of farmed out the process of considering all of these things to the Justice Department. And this is an advisory role. It's not delegating the power to them. They're just making recommendations to the president. But this made a big shift. It wasn't just the president's whim anymore. It was people who did nothing but consider these things all day. And there have been some ups and downs with the pardon power as the politics in the Office of the Pardon Attorney has changed through the decades. And I think in addition to parole, another development was other forms of judicial relief. People could appeal in ways they couldn't. There was post-conviction review that didn't exist before. And so the sort of workaday pardon role of the president sort of faded away. And what that left was the more controversial and consequential ones.
Excerpt from interview: Jeffrey Toobin argues that Ford’s pardon of Nixon, while it had pure motives, undermined the idea that no one is above the law.
Jeffrey Toobin: Well, you know, one of the reasons I wrote the book is I was struck by how the conventional wisdom about Ford's pardon of Nixon had shifted so much over the years. When the pardon happened in 1974, it was a political disaster for Ford. His popularity, which had been quite high, he had only become president a month earlier. He became president on August 9th, and the pardon was on September 8th, 1974. His popularity dropped more than 20 points in a single week. And many people to this day believe that Ford lost the 1976 election to Jimmy Carter in significant part because of the pardon. But then when you get to the more recent times, like in 2001, when Ted Kennedy gave the Profile in Courage Award to Gerald Ford and said, "I was wrong about the pardon and you were right," and Bob Woodward, the great journalist, made a similar statement. I wondered, like, who was right? Were Americans right in the first place about the pardon or was the later evaluation right? And I think Americans were right in the first place. You know, pardons are an aberration in our criminal justice system.
I think it's good that the pardon power exists, but there has to be a very good reason for a pardon because the whole concept of our judicial system is equality before the law. People who, whether they come from whatever background they come from, should be treated similarly and people who commit similar crimes should be prosecuted in the same way. And so there really has to be a good justification to depart from that system. And I think by giving Richard Nixon a pardon, Gerald Ford distorted the idea that no one is above the law. If Nixon committed crimes, just as his aides were about to go on trial for the Watergate cover-up, he should have been prosecuted in the same way. Now, I would understand a lot better if Ford had pardoned Nixon after conviction to avoid a prison sentence, because I do think there is something unbecoming in a democracy to have a new administration lock up the leader of the old. But to stop a prosecution, even before it took place, errs in the other direction, and I think that's what the Ford pardon did.
Brian raised something I just think is worth emphasizing. One of the big criticisms of the pardon at the time was that it looked like a deal. And some journalists had suggested there really was a deal in that Richard Nixon, through intermediaries or directly, said to Ford, look, if you give me a pardon, I will give you the presidency in a straightforward and corrupt deal. And one thing I learned in writing the book was that there was no deal. I mean, this was not a corrupt undertaking by Gerald Ford. He really did this for reasons of state that he thought the pardon would be good for the country as a whole. I think he was wrong about that, but I really don't question his motives. I think his motives were good, but just because your motives are good doesn't mean you make the right decision. And I think he made the wrong one.
Full Transcript
View Transcript (PDF)
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Stay Connected and Learn More
- Questions or comments about the show? Email us at [email protected]
- Continue the conversation by following us on social media @ConstitutionCtr.
- Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate.
- Follow, rate, and review wherever you listen.
- Join us for an upcoming live program or watch recordings on YouTube.
- Support our important work.
