The Pardon: The Politics of Presidential Mercy

“The pardon power was relatively unheard of in popular culture until Gerald Ford, the ‘most accidental of presidents,’ pardoned his disgraced predecessor in 1974.”

The last thing the founding fathers wanted when setting up the governing structure of the United States was another monarchy. Yet despite their best efforts and good intentions, one little sliver of nearly uncheckable power for the executive slipped through: the pardon power, which author Jeffrey Toobin calls “an anomalous provision of the Constitution.” While a guiding principle of that document is a system of checks and balances, to ensure that unbridled power does not rest in any one branch of government, “[t]here is, however, no check or balance on the president’s power to pardon. It is the provision of the Constitution most directly descended from the authority of kings of England.”

Libraries are full of Watergate books, but in The Pardon: The Politics of Presidential Mercy, Toobin narrows his focus to the events leading up to and culminating with “the” pardon of Richard Nixon by Gerald Ford, which he uses as the measuring stick for later pardons. Toobin calls the pardon power “the broadest exercise of presidential mercy.”

It is also, perhaps, the broadest exercise of presidential hubris, often employed exclusively out of self-interest. Its constitutional limitations are that it may be used only for offenses against the United States and that it may not be used in “cases of impeachment.” But nowhere in the language of the constitution is pure or unselfish motive required.

Only two presidents never issued any pardons. It is probably not coincidental that they were the two who spent the least amount of time as president: William Henry Harrison and James Garfield, both of whom died less than a year into office.

Popular legend has it that Harrison, the first non-pardoner, contracted pneumonia as a result of standing in a cold rain during his inordinately long inaugural address. Jokes might be crafted about longwindedness or being smart enough to get in out of the rain. But recent revisionists suggest Harrison actually contracted septic shock as a result of living in a White House that was located downstream of public sewage. That, of course, would set up any number of other jokes about the presidency and politics.

The pardon power was relatively unheard of in popular culture until Gerald Ford, the “most accidental of presidents,” pardoned his disgraced predecessor in 1974. Reviled and cursed, the pardon power then slipped back into the shadows again. Over the following decades, it usually resided in those shadows as some sort of boogeyman, only occasionally peeking out into the sunlight. When it did, it was usually near the end of a presidential term and generally with very little fanfare, at least among the general public.

Toobin takes the reader inside a step-by-step analysis of that infamous 1974 pardon—probably the most criticized and reviled pardon in U.S. history, at least until now—and compares it with later manifestations. Those include Jimmy Carter’s clemency for Vietnam War protestors, Bill Clinton’s pardons that “embarrassed himself,” and the pardons that Reagan and the two Bushes “did not grant; displays of mercy were in conflict with their tough-on-crime values.”

Moving into the modern era, Toobin slams Joe Biden’s pardon of his son, by which he claims Biden “betrayed his principles” and “damaged his legacy.” But he saves most of his ire for Donald J. Trump’s pardons during his first term and those he promised for the beginning of his second term (and subsequently carried out), wholesale pardoning of a group of his supporters who attempted to overturn an election.

The former, he writes, reflect that he was “transactional, narcissistic, and nearly joyful in provoking the ire of his enemies.” As for the latter, which had not yet occurred when the book was written, they “will again remind us of who he is but also tell us something about the country he leads.”

Toobin explores legal questions that arose in 1974 and that even now have continuing relevance. Questions like whether a pardon can cover conduct that has not yet been criminally charged, whether a pardon must be accepted to be effective (and, if accepted, whether it carries implications of guilt), whether a sitting president can be indicted, and whether presidential pardons are subject to review by federal courts.

By the way, Toobin notes that Ford was so obsessed by the Supreme Court’s 1915 decision in Burdick v. United States, which answered at least one of those questions, that he carried the pertinent part of the opinion in his wallet for the rest of his life, presumably next to baby pictures. 

But the Ford pardon of Nixon, according to Toobin, was a mistake. He painstakingly details how and why he believes that—even though he believes that Ford’s heart was arguably in the right place. But as for the pardons of the January 6 insurrectionists? “Ford made the wrong decision, but he did so out of a love of country and a largeness of spirit; Trump is moved, as always, by narcissism and pettiness.”

The reader may agree or disagree, which is always the reader’s prerogative. But the debate is worth having.