University of St. Thomas School of Law Professor Mark Osler spoke with John Katko of PBS about the purpose and use of presidential pardons. The program also featured insights from former United States Pardon Attorney Liz Oyer, Steve Cohen, and Professor Bernadette Meyler, who joined the discussion on how the pardon power should be applied.
From the conversation:
Katko: Mark, let’s start with you. Have recent presidents used pardons primarily for their original purpose? If not, what other motives have influenced presidential pardons?
Osler: It is difficult to say definitively what the original intent was. When the framers put the pardon clause into the Constitution, there was not much clarity, except that it was unusual to give a power traditionally held by kings in a document largely designed to remove the powers of kings from the executive.
What we do know is that the power rests entirely in the hands of the president, which means its use will reflect the principles of that particular president. We have seen that throughout history up to the present day.
Katko: I think there is no doubt about that. Each president seems to put their own unique mark on pardons. Bernadette, what do you think?
Bernadette Myler: I agree with Professor Osler that the original intent is somewhat unclear. But Alexander Hamilton had a specific view: he believed that a well timed offer of pardon could stop an insurrection or rebellion in its tracks.
President Washington used the power in that way after the Whiskey Rebellion in western Pennsylvania shortly after the founding.
So I think one reason the pardon power was included was to provide an emergency escape valve for potential revolutionary or insurrectionist activity.
That use has not been common recently. We could say that the January 6 pardons were something like that, but historically it has been the winning side that pardons the insurrectionists or those involved in revolutionary activity, rather than the side aligned with them.
Katko: Mark, Article II, Section 2 of the Constitution is straightforward when it discusses pardons, but would you agree that Alexander Hamilton took a somewhat more restrictive view?
Osler: He did say pardons were for instances of “unfortunate guilt” and that they were appropriate when the law goes too far. This appears in Federalist 74.
His view recognized that legislatures can sometimes act reactively. For example, in the 1980s, the response to the crack epidemic had serious social consequences, but the laws were passed without sufficient study or deliberation. We paid a price for that.
Ultimately, it was clemency that allowed some people serving overly long crack sentences to be released, along with later congressional action.
