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“When it comes to pardons, presidents are kings,” Jeffrey Toobin writes in his new book, The Pardon: The Politics of Presidential Mercy. “No other provision of the constitution replicates royal authority with such precision.”
The constitution expressly confers upon the president the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment”.
Toobin’s latest is the book for our tempestuous times.
Joe Biden delivered a blanket pardon to Hunter Biden, his son, a twice-convicted felon then awaiting sentencing. In his last hours on the job, the elder Biden pardoned a slew of family members. Last month, Biden’s successor, Donald Trump, reportedly said, “Fuck it, release ’em all,” then granted pardons and commutations to more than 1,500 January 6 defendants.
For now, the Trump justice department seems distracted, waging war against itself.
Main justice department officials and the US attorneys’ office in Manhattan stand pitted against each other over the former’s ordered dismissal of the bribery case against Eric Adams, the mayor of New York. Danielle Sassoon (the acting US attorney for the southern district of New York and formerly a clerk to the late supreme court justice Antonin Scalia) and Hagan Scotten (a federal prosecutor, Iraq war combat veteran and former clerk to justices Brett Kavanaugh and John Roberts) made headlines with their resignations.
Into this smoldering legal landscape steps Toobin, a long-established bestselling author, a former CNN legal analyst and New Yorker writer now hired by the New York Times. Additionally, he is a former federal prosecutor.
The Pardon is well researched and highly readable, a master class on a power wielded by presidents for more than 200 years. Most of the book, however, concerns events from a half-century ago: the pardon of Richard Nixon by Gerald Ford, in the wake of Nixon’s resignation over the Watergate scandal.
The story is familiar, but Toobin offers new facts and insights. He shines a light on Benton Becker, a former federal prosecutor and friend of Ford whom Ford deployed to negotiate Nixon’s pardon. Becker blocked Nixon’s attempt to fly off with boxes of presidential records – but was in way over his head.
Nixon called Alexander Haig, his chief of staff who was still at the White House, and ordered him to secure the records, Toobin relays. “Ship them out here,” Nixon said. “Send everything out here. I want all my records, all my papers and all my tapes.”
Historically, ex-presidents had viewed their papers as their personal property. Haig followed orders but Becker happened on the boxes of records being loaded for shipment. He directed the Secret Service to stop the truck.
“I don’t care if you have to shoot the tires out,” Becker recalled saying. “That truck does not leave here.” Confronted in the Oval Office, Haig feigned ignorance. He also lied, according to Toobin. Outside Ford’s presence, Haig told Leon Jaworski, the Watergate special prosecutor, the records were en route to Nixon’s home in San Clemente, California.
In the end, the lawyers hammered out a compromise that heavily favored Nixon. He gave Becker a tie pin and a pair of cufflinks. Ford gave Nixon a pardon. It really is a remarkable tale.
“I had certainly never heard of Benton Becker when I went into this,” Toobin told the Guardian.
“If you want to address an issue that will be the central event of your presidency, maybe you want to entrust it to someone who is not a young volunteer lawyer, who is himself under criminal investigation.” (Becker, who died in 2015, was accused of misconduct in a stock-fraud case, then exonerated.)
The Nixon pardon stoked outrage. Jerry terHorst, Ford’s press secretary, found the pardon unconscionable given Ford had refused to pardon those who avoided the Vietnam draft. TerHorst quit. In the midterms, the Democrats ran the tables.
With Jimmy Carter in the White House, Congress passed the Presidential Records Act, which made presidential papers government property – a law that Toobin reminds us “was central to the 2023 indictment of former president Donald Trump in connection with his retention of classified documents at his Mar-a-Lago estate after he left office”.
“For better and worse, pardons operate like X-rays into the souls of presidents,” Toobin writes. “Gerald Ford revealed himself to be earnest, impatient, and overmatched.”
Fifty years later, Trump asserts that if he does anything, it is axiomatically legal. “He who saves his Country does not violate any Law,” he recently posted to social media, along with his mugshot, glowering at the camera in his Georgia election fraud case.
For Toobin, the pardon of Hunter Biden reflects on the soul of his father.
“The fact remains that Hunter Biden stood convicted of 12 crimes – and he was, in fact, guilty of all of them,” he said.
But Trump remains in a league of his own.
“If Trump had tried to carve out the non-violent January 6 rioters [for clemency], that would have been somewhat more defensible than what he wound up doing, which was, in my view, completely indefensible,” Toobin told the Guardian.
Hagan Scotten wasn’t concerned with presidential pardons when he quit last week, over attempts to drop the case against Mayor Adams. But as US justice comes under terrible strain, his words will long bear scrutiny.
“Our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less elected officials, in this way,” he wrote. “I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me.”
Lesson learned. But pardons will always be different.
“The powers of the presidency range from nearly absolute to barely existent,” Toobin reminds us. “The pardon power belongs in the former category.”
Much depends on the person who occupies the Oval Office. Right now, it’s someone who views pardons as little more than weapons to be used for political gain.
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The Pardon: The Politics of Presidential Mercy is published in the US by Simon & Schuster
