STEVE INSKEEP, BYLINE: This year's Supreme Court ruling on presidential immunity included a line about pardons. The court said the power to pardon people for past crimes belongs to the president alone. That means an ex-president cannot be prosecuted for abusing that power. Several recent presidents have been accused of abusing it, and former President Trump has talked of pardoning January 6 defendants if he should return to office. There's no way to take away that power under the Constitution, although law professor Kim Wehle argues Congress at least could make the process more transparent. She's written a book on the pardon power.
KIM WEHLE: It was adopted and basically borrowed from the monarchy in common-law England. The idea originally of the pardon power, that goes back 1500s, is an act of mercy by the sovereign for people who get lost in the criminal justice system. And Madison and Hamilton in particular, at the Constitutional Convention, believed that the president needed the ability to show an act of mercy to people who were wrongly convicted.
INSKEEP: And yet you write that there is a darker side to the pardon power, and it has been used to reinforce people who already have power. What did you mean by that?
WEHLE: Just like it's a sort of piece of a monarchy, it executes in a way that puts presidents above the law right now, because there really isn't meaningful checks on it. There is no way to appeal a pardon, and it wipes out the work of the other two branches. So Congress passes a law, says that this is a crime. It gets adjudicated through the entire system, and then a president comes in and says, no, I'm going to wave my magic pardon wand and forgive that. And it's been used, I think, increasingly for political reasons, for corruption, to cover up potentially a president's own wrongdoing, handouts to cronies, to donors. And these days, the more power and influence you have, the more likely you are to get a pardon. It's not really functioning in a way to ensure justice to people that are lost in the system or fall through the cracks.
INSKEEP: Why would my power and influence, if I had any, give me more chance at a pardon?
WEHLE: Well, there are people that lobby for pardons, right? Rudy Giuliani reportedly was peddling his influence for money for pardons. George W. Bush, when he left office, made a statement that he thought the pardon system wasn't working - I'm paraphrasing - and because there's this flurry of last-minute requests. I mean, Donald Trump granted 60% of his pardons in the very last days of office.
INSKEEP: If we think about the situation that we're in now, where whoever wins the presidential election is going to have the pardon power, what is your worst-case scenario?
WEHLE: Worst-case scenario is that person goes into office armed with the criminal immunity decision, knowing that official acts can be used to commit crimes, and decides they don't want to leave. And so they are going to bring people into the administration with complete, abject loyalty, offer them pardons - that information could be kept secret, potentially, under the immunity ruling - and populate the massive, powerful apparatus of the executive branch with people that are willing to commit crimes. And that will be the end of democracy, because when you've got the power of the commander in chief, the military, the FBI, the CIA, federal law enforcement, the IRS, the ability to spy on individuals, the ability to conduct bogus investigations, and people know they can engage in that with impunity - that is not democracy. That is something closer to a dictatorship.
INSKEEP: OK, wow. I thought you were going to tell me Donald Trump wins office and pardons the January 6 rioters. You're worried about a lot more than that.
WEHLE: I'm absolutely worried about a lot more than that. And when people push back on that, I'm reminded of, you know, just driving down the street and speeding, right? People will speed until there's a consequence for speeding.
INSKEEP: So that's the worst-case scenario. Can you talk me through a best-case scenario for ways the pardon power might be used to help heal some of our divisions?
WEHLE: Best-case scenario is a president decides, OK, I want to use this in a positive way. I want to use this in a thoughtful, systematic, transparent way to address some of the injustices in our criminal justice system. So the pardon power offers, in the right hands, opportunities to move us towards a fairer democracy. And in the wrong hands, it offers opportunities for the death of democracy.
INSKEEP: Kim Wehle, thanks very much for coming by. Really appreciate it.
WEHLE: Great to talk with you. Thank you, Steve.
INSKEEP: Her new book is called "Pardon Power." Transcript provided by NPR, Copyright NPR.
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