Brian Kalt of Michigan State College of Law and Jeffrey Toobin, author of The Pardon: The Politics of Presidential Mercy, 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. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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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 argues that Ford’s pardon of Nixon lacked accountability and oversight, and that Nixon should have admitted guilt for the pardon to be more justified.
Brian Kalt: The whole campaign finance regulation system as we know it arose after Watergate because of the campaign finance angles there. One thing about the pardon, I think that's interesting here is there was outrage about the pardon and Ford testified about it. And the idea that now, of course, it wasn't push coming to shove and them hauling him in there, he was willing to do it. But what we've seen more recently talking about repudiating this legacy is much more resistance by presidents to any sort of congressional oversight. The idea of a president or sometimes even a cabinet member voluntarily going and subjecting themselves to these sorts of questions and investigations has faded away. And I think much to our detriment, I think that congressional oversight, congress being interested in its own prerogatives, not just partisan side taking, is a key part of the structure of the Constitution that we seem to be losing. And that at least during and after Watergate was at a, I mean, it's been declining for centuries, but it came back up a little bit at Watergate and it's only faded since then. So it was kind of like Congress's last best gasp of independent oversight.
There is one thing I do want to talk about, about the pardon power and the legacy of this. And also this connects to how Ford could have done this differently and better. Ford could have said to Nixon, I'll pardon you if you admit that you did something wrong. Right? If you apologize, if you tell us more. Right. To fess up, truth and reconciliation sort of thing. He didn't do that. And he liked to talk about how for the rest of his life. He carried a little scrap of paper in his wallet with the line from the Supreme Court decision in Burdick vs United States that says that accepting a pardon is a confession of guilt. And he said, see, I wasn't letting him off the hook. He was admitting he was guilty. But that's not what Burdick actually said. And we see this trotted out a lot. But sometimes presidents pardon people because they're not guilty, and they do it to exonerate them. And so the meaning of the pardon is whatever the President says is the meaning of the pardon. And so if Ford had made it clearer at the time he was doing it, or even gotten Nixon to sign on to that admission of guilt, I think it would have been more palatable.
And at least, of course, the 10th Circuit recently made clear. Yeah, the point in Burdick was that pardons might make you look guilty, so you don't have to accept one if you don't want to. That was all they were saying. It doesn't have this necessary legal effect of declaring you guilty. It just has a practical one, which the President can make go away, as sometimes presidents do, by exonerating people saying, I'm pardoning him, not to forgive him, but because he didn't do it.
Excerpt from interview: Jeffrey Toobin believes Ford's pardon of Nixon undermined the principle of equal justice under the law.
Jeffrey Toobin: Well, 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, insignificant part because of the pardon. But then when you get to the more recent times, like in 2001, when Ted Kennedy gave the Profile and 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, 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. 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.
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