Law Professor Kim Wehle Explains the Presidential Pardon Power, Why We Have It, and What it Means for Democracy Today

The pardon power sits at the intersection of many competing forces that we face as a society and a nation. Mercy versus corruption. Democracy versus dictatorship. Law versus religion. These days, it’s evoking strong emotions.

The most famous pardon ever was by the Roman governor Pontius Pilate for a man named Barabbas. Pilate presented Barabbas, an accused murderer, and Jesus of Nazareth to a crowd and asked which of the two should be pardoned. The crowd chose Barabbas as part of a long-standing Jewish tradition of pardoning one person during the Passover feast. Barabbas’s pardon gave birth to the Christian religion.

In Ancient Rome, a prisoner condemned to death would be pardoned if, on his walk to his execution, he passed a Vestal Virgin by chance. Vestal Virgins were sacred virgins who had taken a thirty-year vow of chastity to the goddess Vesta. Ancient Romans believed the purity of the Vestal Virgins would be transferred to the prisoner upon the chance encounter, thereby spiritually washing away their crimes. 

Pardons are supposed to be about forgiveness.

The reason that the pardon power exists in every country across the globe except China is a noble one.

In England, there were no jury trials until the 13^th century. No constitutional rights. No appeals to higher courts. Justice was harsh. In 1249, a four-year-old girl named Katherine was imprisoned in St. Albans’s jail after opening a door and accidentally pushing a younger child into a vat of hot water, killing them. Katherine’s father brought the matter to the king, who directed the sheriff to deliver her a pardon and release her.

In theory, the mercy rationale has survived.

Abraham Lincoln believed it. Lincoln and our last president, Donald Trump, shared one thing in common when it came to the pardon power: They both kinda loved it.

Lincoln recognized the strategic potential of the pardon power during wartime. He pardoned condemned Union soldiers who had been punished for minor infractions like falling asleep on duty. He often did this at the request of their mothers and wives. Lincoln also used the pardon to boost the morale of the troops. He and his successor, Andrew Johnson, pardoned Confederates to regain their loyalty and trust and bring the nation together.

Trump, like Lincoln, appreciated his power to pardon, but for a different reason. White House officials said that pardons were President Trump’s “favorite thing” because he could approve them without the restraints that hampered other initiatives.

Trump went on to pardon prominent political figures and people who showed loyalty to him unlike any president had before him. He pardoned a bunch of people who committed crimes in connection with the investigation of Russian interference in the 2016 election to his benefit. The federal judge at Roger Stone’s sentencing even acknowledged on the record that Stone committed crimes to “cover up for the president.” Trump praised him for having the “guts” not to “turn on” him.

In giving presidents the power to “Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment,” the Framers empowered the best and the worst of human nature in the Oval Office. The pardon power offers a means of showing extraordinary mercy and compassion without the red tape—presidents don’t have to bother with Congress or judges or even voters. 

Joe Biden’s pardon of his son, Hunter, prompted widespread criticism that Biden had somehow thwarted the rule of law. Yet every pardon does that.

Trump has also promised to pardon people convicted of crimes on January 6—folks he calls “patriots” and “hostages.” That group includes people caught on tape brandishing stun guns, flagpoles, fire extinguishers, bike racks, batons, and even an explosive device during the attack that injured about 140 police officers. A mass pardon for January 6 would condone lawlessness and violence, not foster compassion and unity.

So with this in mind, the pardon poses three major questions:

Why on earth do we have this remnant of the English monarchy? 

At the time it made it into the U.S. Constitution, the British Parliament had already taken steps to curb the King’s pardon power. As early as 1328, a law called the Statute of Northampton called for the king “not to grant a pardon except where it was consistent with his oath”—his coronation oath, that is, which included a promise to “uphold justice and mercy in all judgements.”

Fast forward to 2024. The Supreme Court has held that, so long as they use their official power to commit crimes, presidents are immune from prosecution. They can act contrary to their oath to uphold and defend the Constitution itself. And by promising pardons, criminal presidents can both incentivize and immunize employees and the military to participate in crimes at his direction.

Why do we accept its potential for abuse?

George W. Bush came to see what he called the “massive injustice” in the pardon system. If you have connections with POTUS, you get your name in there during a last-minute frenzy. The most deserving are mostly out of luck.

These days, although there are exceptions, Presidents do not use the pardon as a way address wrongful convictions, to halt death sentences of federal inmates who might be exonerated by modern science, or to remedy the racist practices of the prison industrial complex.

The public accepts this because we don’t talk about it or understand it. There’s a mythology around the pardon power, as if presidents are actually kings when they pardon. But the pardon power, like much of the Constitution, is not absolute. There are limits. The Supreme Court has even recognized some. There should be more.

What do we do about it?

There are no easy answers here, but in my mind, the most profound ones don’t involve the law. Resolving the tension between mercy and cruelty lies in our common humanity. 

Our first president understood this. When George Washington was 14, he penned a little book called the 100 Rules of Civility, and wrote: “Labour to keep alive in your Breast that Little Spark of Celestial fire Called Conscience.” 

The pardon power is supposed to enable the exercise of good conscience in a world that can be cruel. It reminds us that it’s time for the American people to have a conversation about what our core values really are.

Kimberly Wehle is an author, lawyer, law professor, and legal contributor for ABC News. She is a former Assistant United States Attorney, Associate Independent Counsel in the Whitewater Investigation, and author Pardon Power: How the Pardon System Works and Why.