Heather Cox Richardson:

From Cafe and the Vox Media Podcast Network, this is Now & Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman. Today we’re going to talk about presidential pardons. Now, obviously in one way or another, this has been in the news, even simply for the question, due to the question of whether a president can or can’t pardon himself. But there’s obviously a longer history of this and that history reveals a lot about what pardons were intended to be, what pardons can do, the sorts of holes or vulnerabilities in the arguments that people might make for or against pardons. So that’s what we would like to talk about today, is pardons, how they came to be, how people considered them, and a few examples of how they’ve been put into action, as ever with the desire to put what’s going on now in some kind of useful historical context for you.

Heather Cox Richardson:

So Joanne, before we get into why we’re talking about this right now, I just would love to have you on the record explaining whether or not the founders of the United States and the framers of the Constitution would have wanted the chief executive to be able to pardon himself.

Joanne Freeman:

No, they would not. And the reason they would not is because more than anything else, they were worried about how much power a president would have. They worried about demagogues, they were worried about a president that had too much power. In that context, and you can see it all over the place, so I’m not inventing this as a historian, there’s no way that they would’ve thought, “But you know what? Hey, let’s let him pardon himself so that he can do whatever he wants and then pardon himself. But no, that won’t give him an extreme amount of power.” So they would not have been comfortable with this idea and all of their writing about three branches and the presidency pretty much substantiates that.

Heather Cox Richardson:

Okay. So I just wanted that out there because every time I read somebody talking about, “Well, could he pardon himself, could he not pardon himself? Let’s take a look at the literature. Let’s take a look at the language in the Constitution.” I hear your voice in my head going, “What?” Because of course they would not have said that. And we’re here in this moment, it’s a very odd moment in many ways, and the past really speaks to it I think, in part because we have a president who is indicted in so many different places for so many different things. And the question that a number of people are asking is is it possible that this dude is finally going to have to answer for these indictments in some place or another? And it certainly has been noised about that there are ways in which he could obtain pardons.

And the place where that looks like it could not happen is in Georgia. And last week, a Fulton County grand jury indicted former President Trump and 18 other people under Georgia’s RICO statute. We did a show on RICO and what that meant at the federal level, Georgia’s RICO statute is actually a bit stronger in many ways, a little bit different than the federal statute. And Trump faces 13 felony charges for his attempt to overturn the results of the 2020 presidential election in Georgia. If he is convicted in the Georgia indictment, Trump could face a minimum prison term of five years. There’s a little bit of hedging around the way that actually works.

But here’s the key piece for today for us of the Georgia indictments, and that is that the Georgia pardon system is different than almost any other state, in that neither Trump himself or if he were to be reelected or any of his allies, including a Republican governor in the state of Georgia, could pardon him for his crimes. Because Georgia is one of six states that has an independent pardon board that has most of the discretion over whether or not to grant pardons. And the other states that are like that are Alabama, Connecticut, Idaho, South Carolina, and Utah. The five member Georgia State Board of Pardons and Paroles only considers pardon applications beginning five years after an individual has completed their sentence. And during those five years, the pardon applicant must have no other pending charges and has to live a law-abiding life.

Joanne Freeman:

It’s important to note here, think about what Heather just said, it’s an independent board that has discretion over pardons. They are actually appointed by a governor. They cannot be removed once they’re appointed. So these are, in essence, people who are judges of pardons, who cannot allegedly be affected by partisanship because they’re not elected into the office and they can’t be removed once they have it. So in one way or another, and we’ll get into this in the episode today, initially this was an attempt to avoid corruption and partisanship when it comes to pardons. So think about the Supreme Court and the attempt to move justices outside of partisanship and corruption. I won’t say anything about whether they’re there or not today, you can take that on your own. But the ideal is similar in the original logic of the Supreme Court.

Heather Cox Richardson:

There are certainly people among the right who are arguing that Georgia should change the law so that in fact Trump can be pardoned. But that would be a very difficult effort to do simply because the fact that the board’s role is outlined in the State Constitution. So two thirds of the State Senate and the House would have to approve a constitutional amendment, and a majority of voters would have to approve that change during the next general election in order to bring the pardon authority back to the governor of Georgia. And already Republicans in Georgia are like, “We are simply not going to try and accomplish this,” because of course it would derail anything else that they wanted to put in front of the voters.

So the real question for me, Joanne, and one of the things that I really was hoping to get into this time around, because pardons are going to become such a hugely important issue after the middle of the 19th century, is how the heck did we get this concept that an executive in a governing system should have the ability to give people a get out of jail free card?

Joanne Freeman:

Well, as with so much else in the American political tradition, and particularly when you’re talking about colonial America and then early America, the antecedents come from England and in the case of a presidential pardon, they’re linked to the British monarchy. You can go all the way back and think of very early English history where it was branded, in one way or another, the prerogative of mercy, as in the king in all of his power, so it’s occasionally the queen in all of her power, has the prerogative of offering mercy to someone who’s been charged with a crime. Now that makes it sound like it’s a noble sort of divine rights gesture, but the fact of the matter is from the very beginning, there was also corruption involved in which you could pay a fine to the king and the king would give you a pardon.

So the idea of it is that this single source of power, the king, has the right to offer mercy to someone who for one reason or another, he sees as deserving mercy. And right along with that is the idea that there were ways, even from the beginning, of wiggling your way through so that it wasn’t as pure a process as it might’ve been.

Heather Cox Richardson:

So is it also fair to say, do you think, that a pardon is a demonstration of power as well because you’re demonstrating that you have the power of life and death or the power of imprisonment or freedom? When I think of the king’s mercy, it seems like a humanitarian gesture, but of course Hitler did that as well. And we’ve certainly seen demonstrations of people doing that throughout American history to sort of say, “Hey, the way I move this pen means you’re either going to live or die.”

Joanne Freeman:

The word mercy in that sense is misleading. It’s I am a person of supreme power, and if I decide to pardon you, I can. It’s almost the equivalent, think in ancient Rome of emperors who would do thumbs up or thumbs down as to whether a gladiator should live or die. In a sense, at its heart, it has some of that to it. So you’re right, it’s not necessarily this great humanitarian gesture, although I suppose it could be. It’s a sign of extreme power.

Heather Cox Richardson:

Well, I’m interested in the way the crown dealt with its own officials in the United States, especially Edmund Andros, who holds a lot of crown positions in colonial America. Andros had the issue of trying to reimpose British power in a place that had become increasingly restive under that power. And so the Crown gives him a certain kind of power, it seems to me, to escape accountability or at least what the Crown considers the corruption of local juries.

Joanne Freeman:

Well, true. So the idea that Edmund Andros, who at various times was Governor of Virginia and of the short-lived Dominion of New England, which always sounds to me like something that Darth Vader would govern and was explicitly given permission by the Crown to grant pardons. So yes, that is true. On the other hand, royal officials, increasingly over time, not necessarily in the 17th century, but certainly in the 18th century, that was a reason why colonists opposed these people, stood up to these people, protested against these people because it felt precisely like the kind of unquestioned power, and in this case, coming from an authority that was far, far away, it did not sit well with some people.

It was a form of authority that despite the fact that the colonies were inherently British, they loved the mother country, but they also were colonists and the colony existed because of a specific right granted to specific people or a specific person. They were created largely by a kind of contract. And colonists understood, because of that, that they had certain rights, that their system was set up a certain way. They were very paper minded and agreement minded as colonists in a sense, because that’s how they came to be in that colony.

Heather Cox Richardson:

I’m back here thinking I want a t-shirt that says paper minded. But the reason I’m pointing to Andros is because the colonists hate him. When he gets the power to pardon people, these are people that have been found guilty in the colonies by colonists, and he gets to come in and say, “Nevermind, you’re free.” I mean, the argument being that the colonists are unfairly going after British loyalists or people who are loyal at that point to that particular monarch in a way that is unacceptable to other people who live there. But it introduces the idea of corruption in the pardoning power, that it’s not about mercy. It’s not even necessarily about the power of demonstrating your strength. That it could in fact simply be he’s letting off the people who are not siding with colonists on issues that are important to the crown.

Joanne Freeman:

And in that way, it’s also a sign of unrestrained, blatant, in your face act of power by people who can’t be reigned in.

Heather Cox Richardson:

Which is what Andros specializes in.

Joanne Freeman:

Precisely.

Heather Cox Richardson:

I find this fascinating because then, like you say, the colonists have to turn themselves into a nation and figure out a dance between this idea of mercy for the people who are just screwed for one reason or another, a demonstration of power to say, “Don’t mess with this government because it can cut your head off or not.” I mean, not literally cut your head off, but you know what I mean. And also how do you get away from somebody trying to pardon somebody who might’ve committed treason, and how on earth did they do that?

Joanne Freeman:

There was discussion during the constitutional convention about treason and whether a president should or shouldn’t have the power to pardon people who committed treason. And one of the arguments in that case was that no, the president shouldn’t be able to pardon people who committed treason because what if he encouraged those people to do it for him? That’s not proper, that’s not allowable, and there was a discussion about that. And in the end, in some ways, people thought, “Well, impeachment kind of helps with that, doesn’t it? Because if that’s the case and he pardons people who were doing it for him, then we can impeach him for that crime.” Now, clearly that’s a complicated maneuver that plays out in different ways. But the larger point here is they were already thinking about the fact that a president might want to find ways to not charge people around him with crimes that would, in essence, implicate him in those crimes, and pardoning himself and pardoning others, it would allow him to do that.

So let me just state for the record here what the presidential pardon power in the Constitution is, and it’s defined in Article Two, Section Two of the US Constitution, which outlines that the president can pardon criminals convicted of any offenses except impeachment. So that reads, “The president shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Pretty straightforward what it’s saying. It certainly comes up, and then it reappears in the Federalist essays written to defend the Constitution towards ratification, and then again, in the ratifying conventions. There’s a balance between trying to create a figure that has power, versus explaining why that power isn’t just about that person. So Hamilton actually is a great example because he has two different reasons why he thinks pardoning is important and they’re very much not the same thing.

So on the one hand he says in Federalist Number 74, “The reflection that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulous and caution. The dread of being accused of weakness or connivance would beget equal circumspection though of a different kind.” On the other hand, “As men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government than a body of men.” So that’s a long Hamiltonian way of saying one person should have that power because that would actually feel like extreme power. If you’re someone doing something guilty and you realize one person can decide your fate, that’s a real form of power, and you might be more nervous about doing something wrong than going up before a body of people where there would be a lot more possibility of finagling things.

So on the one hand, pardon is a way of showing the power of the president. On the other hand, Hamilton also says in Federalist 74, and again, these are his words, “In seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth, and which if suffered to pass unimproved, it may never be possible afterwards to recall.” There Hamilton is saying, if presidents can offer a pardon, it’s going to calm down the people because the people really have power, the masses. And in the case when the masses are really upset, in a sense, this is a way of bowing to that and offering a way to quiet down the people.

So what I love about this is that on the one hand Hamilton is saying, “Makes perfect sense for one president to have all that power.” And on the other hand, he’s saying, “Well, other people have a lot of power. So sometimes that president is going to have to do things to quiet them down, and there may be only one moment when that can happen and have the desired effect.”

Heather Cox Richardson:

So what’s interesting about that is that Hamilton was always such a wonderful judge of character. I mean, he was so cynical about people, but he figured out how to balance different people’s interests against each other in such a way that they kept people moving in the same direction for the good of the whole. In this case, he just completely missed the mark. This is the first time I’ve ever heard you read Hamilton or read Hamilton, where it’s like, really dude?

Joanne Freeman:

In what sense?

Heather Cox Richardson:

Meaning that the idea that one person being in power is going to be judicious so that he doesn’t offend the gods, I’m putting that in there, but the idea that shame or whatever is going to be enough that one person doesn’t abuse the power is wrong. We literally know that. I mean, aside from where we are in this moment in American history, that is literally what happened in the 1860s. And then the idea that offering pardons will calm the people, the exact opposite is what happened after the Civil War. But for Hamilton to mess that up that much kind of surprises me.

Joanne Freeman:

So you’re right. Hamilton was the guy who was cynical about human nature and believed that government should be set up to channel bad passions in the right direction, and that’s his idea of government. In the case of a president having that pardon power, what Hamilton really wanted was a really, really, really powerful president, something akin to a king, although he wasn’t going to say that, this would be aligned with that. So that’s what he’s thinking in this case is it’s important to have one person who can do things all by himself, and it would’ve been himself at this time for sure, that is efficient and that is powerful, and that’s better governance.

So you’re right, that on one level, in hindsight, we can see how that’s wrong, but it certainly is in line with what Hamilton thought. And on the other hand, saying that by granting a pardon, you can quiet down the people, Hamilton distrusted the people more than anything else, and I think on the one hand, this was one way for him to think of them being quieted. On the other hand, the Federalist isn’t objective, it’s trying to get people to buy into the Constitution. And what he’s saying there is, “Well, the people have so much power, it would be important to be able to appease them.”

Heather Cox Richardson:

Okay, so it’s a bit propaganda.

Joanne Freeman:

There are many, many moments in the Federalist that you could say propaganda, you could say trying to sell the Constitution.

Heather Cox Richardson:

Gentle persuasion.

Joanne Freeman:

That’s unusually diplomatic for you, Heather. He’s trying to sell the Constitution on the one hand, explaining why he thinks it’s great, and on the other hand, appeasing people’s fears.

Heather Cox Richardson:

Okay, so can you look then at what President George Washington did with the Whiskey Rebellion and say it’s an implementation of what Hamilton was laying out in Federalist 74?

Joanne Freeman:

So in the case of the Whiskey Rebellion that happens during George Washington’s presidency, and the quick and dirty explanation of it is Hamilton is Secretary of the Treasury, passed an excise tax on domestic whiskey as a way for the federal government to get money to help pay for the assumption of state debts from the revolution. For some people, particularly out on the frontier, and in this case Western Pennsylvania, that was a big problem. It took away a huge amount of the value of the whiskey that they were producing, which was a major product for them. And also, they used whiskey as a medium of exchange, which made it even more complicated. Some of them shunned or threatened people collecting the duty. There was protests. There was also some violence, some tarring and feathering of people who were trying to collect the tax. Washington ultimately grants some pardons in part because the rebellion is silenced, the people go back to being in the state that they were before, and pushing forward with this kind of prosecution doesn’t really seem to serve a purpose.

Heather Cox Richardson:

Well, doesn’t Washington march out himself to put down the whiskey rebels?

Joanne Freeman:

Well, he and Hamilton march out at the head of an enormous army to silence the whiskey rebels, this is true. And Hamilton, in particular, wants that because he says, “They’re rebelling against the government. They’re going to bring down the government.” So they do, federal troops march out

Heather Cox Richardson:

And they end up arresting a bunch of poor fellows who were not in good shape, as I recall.

Joanne Freeman:

They do. They realize, there’s a story of Hamilton being out there, Washington doesn’t ultimately go the whole way, and Hamilton does, and there’s an anecdote of Hamilton interviewing whiskey rebels and pounding his leg with his fist because the fact of the matter is there’s just not a lot of serious crime here. He wants there to be serious crime, and he’s like, “Curses, that’s not what’s going on here.” But yes, there’s an army marched out and fear of federal troops, on the one hand, pushes some people back so that they aren’t going to protest anymore, on the other hand, yeah, then you have arrests.

Heather Cox Richardson:

Well, the reason I’m pushing this is because it sounds as if it is precisely the formula that he sets out in Federalist 74, the idea that the president or the executive throws around a lot of weight so that you’re afraid of the government and then says, “Oh, but I’m going to pardon you,” and that calms everything down because in fact, it does calm everything down.

Joanne Freeman:

It does calm everything down, and then it does precisely what someone like Hamilton and Washington would want, it’s an assertion of presidential power.

Heather Cox Richardson:

So that, to me, brings up the question, although I think I know the answer, of why it backfires so spectacularly two generations later with the American Civil War, because that is exhibit A for why the presidential pardoning power can completely mess up this country.

So what happens after the Civil War is obviously extraordinarily complicated, but the pardoning piece of it is not. So when Abraham Lincoln is assassinated in April, he’s shot on April 14th, he dies on April 15th, 1865, when that happens, Congress is not in session. It is adjourned in March, on the day of Lincoln’s first inaugural. The new session is not due to come back into session until the beginning of December. So what that means is that Andrew Johnson, who is Lincoln’s vice president, but who is not a Republican, that’s actually quite important. He was a member of the Democratic Party, and when he’s elected in ’64 with Lincoln, he’s a member of the Union Party, really short-lived party everybody forgets about, but he was never a Republican. He alone is in charge of what he calls restoring the country. And what he means by that is recreating the body politics.

So when we think about reconstruction nowadays, we think about race relations and gender relations and the war in the West with the indigenous Americans and all that. He cares about putting the political system back together. So on May 29th, just three days after the last major Confederate army surrenders, Johnson issues a proclamation of pardon and amnesty to most of the Confederates. He said all they had to do was to sign a loyalty oath, which says, “I do solemnly swear or affirm in the presence of Almighty God that I will hence forth faithfully, support, protect, and defend the Constitution of the United States and the union of the states there under, and that I will in like manner abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves. So help me God.”

So he’s asking these former Confederate largely soldiers to sign this pledge. And at the same time he said that he would not pardon under this proclamation of amnesty, people who had taken oaths of loyalty to the United States and broken those oaths or high ranking government or military officials or people who are worth more than $20,000. To those people, he said he would liberally extend presidential pardons. So there you have again, this idea that the government has shown its strong hand. I mean, after all, they just won a four-year war and the South is in smoking ruins, and here they are saying, “As long as you say you won’t do it again, we’re all good.” What happens is, first of all, this man from Tennessee who’s a Democrat and eager to restore the antebellum political system the way it was, without the institution of enslavement, which he believes is concentrating wealth at the top of the economic scale.

First of all, there’s a rush to try and get people to sign loyalty oaths, and a lot of them simply refuse. But while that is going on in the South, people who have been excluded from the Amnesty Act flock to Washington to get their pardons, their presidential pardons. So Johnson and the administration hires a bunch of clerks to help him, try to speed up the process of presidential amnesty, of course before Congress comes back into session. They have ultimately granted more than 13,000 presidential pardons, and under the general oath, about 200,000 people. And by the summer of ’65, the former Confederates are flooding into Washington to get their pardons.

Joanne Freeman:

And it’s important to consider, we say things like flooding in and we use that sort of language, but in this case, the New York Tribune offers an image of what that was like. The New York Tribune wrote, “There were several hundred pardon seekers thronging the president’s mansion today. The city is filled with those of the $20,000 stamp and daily arrivals are greatly in excess of the departures.” So literally, people are rushing to Washington to find a way, Newbie is highly outraged at this, to find a way to get a pardon.

Heather Cox Richardson:

And the New York Herald in July of ’65 made a similar comment. “The scene at the President’s reception today was most remarkable. The anteroom was crowded with senators and representatives of the late rebel Congress seeking interviews with the president and beseeching that their pardons might be hurried up.” Well, of course, one of the reasons they want their pardons hurried up is because at this very moment, there are new state constitutions and new elections being held in the South to reelect these same freaking people to sit in the US Congress again. So these people who have literally tried to destroy the United States, who have committed rebellion against it are getting presidential pardons so they can go back and sit in Congress again, including the vice president of the Confederacy, Alexander Stephens, who is not yet elected by Georgia, but will be elected by Georgia to go back and take a seat in the US Senate.

And get this, because of the 1870 census that’s going to reapportion seats and stuff in the country, African Americans are going to be included as full people rather than three fifths of the person for the first time in US history. So these people are going to be more powerful after the Civil War than they were before the Civil War. My hair is on fire.

Joanne Freeman:

But this is yet another example of the Southern attitude after the war, they deserve pardons, they deserve to get right back to where they were before. It’s not as though there’s a lot of people feeling repentant in any way. And another way in which you can see this is actually in Congress itself after the war is over, when Louisiana is trying to get back into the union, for example, they’re very impatient because it’s taking too long. And the first attempted violent acts in a long time, there’s a lot of violence in Congress, it ebbs during the war, partly because the Southerners aren’t there. Southerners start to come back, Louisiana representatives come back and suddenly there’s violence. Why? These people from Louisiana are threatening the people who are taking too long to allow them back in. So they’re not repentant, they’re not asking for pardon, they’re essentially saying, “Come on already, just finish this off and let us back in.”

Heather Cox Richardson:

Because we deserve to be making the rules for everybody.

Joanne Freeman:

Right.

Heather Cox Richardson:

And it is worth pointing out here that Johnson is cheering them on. Johnson is more than happy to have them return to power. And in one case, a pardoned Confederate ambushed a young Black boy near Hilton Head, South Carolina and shot him 57 times. He was one of the people who had been pardoned by Johnson. So the Massachusetts abolitionist, Thomas Wentworth Higginson said, “What most men mean today by the president’s plan of reconstruction is the pardon of every rebel for the crime of rebellion, and the utter refusal to pardon a single Black loyalist for the crime of being Black.” And that was in quotation marks, because the obvious point here was that Johnson is talking about restoring the South because he doesn’t want to offend Southerners, again, air quotes around both of those, when he has very clearly written out of that definition of the South and Southerners, the Black Americans who were loyal to the United States. The people he’s backing are the white former Confederates who are trying to destroy the United States.

Joanne Freeman:

And who had power before and are seemingly just being given power again as it was before, with the same people holding power.

Heather Cox Richardson:

The Republicans, when they get back into Congress, Johnson greets them with this message to Congress in which he says, “Hey, I got great news. I took care of,” what he calls restoration, “While you were out playing,” I put that part in, “While you were in recess. In between the two congresses, I took care of everything, and all you got to do is receipt the Southerners from the former Confederate states back to Congress, and it’s all over. We’re good. And I did this because it would really have upset Southerners to keep the military in the Southern states.” And Southerners, of course, they’re very clearly defined as white Southerners. And of course the Republicans in Congress and for that matter, the Northern Democrats, all of whose constituents have lost sons and fathers and husbands, who have had their lives completely upended by this war are like, “Are you freaking kidding me? No, we are not handing power back over to the former Confederates, which is what you want to do.”

So they refuse to seat them. When people start talking about congressional reconstruction, the Republicans and the Northern Democrats say, “There’s no freaking way we’re putting these people back in their seats.” And then they have to come up with their own plan for reconstruction, and that’s the 14th Amendment. And with the 14th Amendment, they say, “Hang on just a minute here. Not only does every state have to treat everybody within it equally,” and they’re trying to get rid of the Black codes when they do that, these unequal laws that the Southern states have tried to impose on Black Americans. In Section Three, they explicitly disqualify from holding office any person who has previously taken an oath as a member of Congress or as an officer of the United States, or as a member of any state legislature or any executive or judicial officer to support the Constitution and then engaged in rebellion or insurrection against the United States, or giving aid or comfort to the enemies thereof. This was really explicitly to say, “Stop it. You can’t try and destroy the institutions of the United States and then take power again.”

Joanne Freeman:

There’s an important point to be made because hair on fire is a perfect reaction to what’s going on here. And clearly these are sweeping, pointed, and ultimately for some at least, controversial decisions, there’s a reason why pardons, often presidents wait until the very end of their tenure in office to drop pardons because they’re going to be controversial and at least they’re leaving office and don’t have to worry about the impact of those pardons. You can see many of the reasons in just this one example why presidential pardons would cause outrage.

Heather Cox Richardson:

So this is one of the reasons that people usually wait till the end. But it also raises, I think, something that the framers missed, in that politics here trumps loyalty to the government and that is here in spades. And the answer to that was the idea that you could impeach an officer who was behaving badly, but we now know that politics even trumps that. It doesn’t matter how badly an officer acts if his political party says, “We don’t care, we’re just going to keep him in power because we got to stay in power.” So that whole idea that the pardoning power can be used corruptly to pack a party in power or an individual in power is incredibly ironically what gives us the situation in Georgia today, that makes it look as if former President Trump and the people with whom he allegedly conspired can’t get a pardon, because Georgia recognized the danger of that.

Joanne Freeman:

Now, the Georgia pardon system resulted from the actions of E.D. Rivers, Eurith D. Rivers. He was governor of Georgia from 1937, I love old names, from 1937 until 1941. He was a new deal Democrat, but he was also a former high ranking figure in the Ku Klux Klan. He was famed for achievements in new deal implementation, particularly having to do with creating rural electrification. And some of his actions became known among some as a quote, “little new deal.” But the Roosevelt administration, for good reason, was hesitant to support him to get more power, for example, to take a run in the Senate in 1937 because of his continued closeness with top KKK figures. Now, he had run in 1936 against the pardon record of his predecessor, Eugene Talmadge, who had been a very powerful governor, who was term limited, could have no more than two consecutive terms.

Rivers positioned himself as a good government reformer who abhorred the cronyism of the notoriously corrupt Talmadge. Not long before the election Rivers told the crowd, “When the people of Georgia elect me governor next Wednesday, they will not only elect a governor who will cooperate with the Roosevelt administration in making Georgia government a government for humanity, but they will also elect a governor who will cooperate with the Department of Justice in cleaning up the pardon racket.” Which is not what happened. So throughout his term, he was followed, for good reason, by charges that he was misusing the pardon power, in part for personal gain. So for example, in 1939, a Fulton County grand jury investigated charges that Rivers had given blanket pardons to the state’s convicted racketeers, although no charges were ultimately filed. Along similar lines, during his final two days in office, Rivers was accused of an even broader pardon play.

He allegedly gave his Black chauffeur, Albert Chandler, 1,000 signed pardons with the names of the prisoners left blank. And Chandler then allegedly made a tour of Georgia chain gangs and prisons and offered pardons to prisoners for the cost of 25 to $100. About 400 prisoners, including 22 murderers were released during the final two days of Rivers term. Rivers supposedly worked for 24 hours straight before leaving office to grant the pardons that Chandler had collected. This is just summing up a lot of what we’ve been talking about so far, about all of the ways in which pardons can be used corruptly.

Heather Cox Richardson:

But I find this really interesting because this happens across the American South, not this particular scheme, but it happens across the American South between the 1870s and 1965 and the Voting Rights Act of 1965, is that the Southern Democrats, except in very rare occasions, vote solidly Democratic. It’s called the solid South. And what that means is that the Democratic Party can do anything it wants essentially, there’s no oversight, and it’s not just a question of the party, it’s a question of whoever’s in charge of the party being able to get away with whatever they want. And it gets so bad by the 1940s that even in Georgia, which is absolutely a dominated by the Southern Democrats, they’re like, “Okay, we just have to fix this. This is too bad even for us white Democrats.”

Joanne Freeman:

It crossed the line even for them. And also in part because Rivers was acquitted of all criminal charges.

Heather Cox Richardson:

Of course he was because they also had the juries. The reason I make that point is because somehow there are people out there who think that if you erase a political party in the United States, and you hear this a lot from Republicans on the right, that somehow it’s going to usher in some kind of a nirvana. And it’s like, we literally did that, and it literally was so bad that one of those states finally said, “You guys are so corrupt, we got to take it out of your hands.”

Joanne Freeman:

We’re going to change the system. And that’s when the Georgia State Legislature takes up a proposal to create a Georgia State Board of Pardons and Paroles, and that board will have the authority to grant pardons. Opponents of that, and it seems like kind of a logical solution, opponents of the idea of that board argued that Rivers, not the governor’s general pardon authority was to blame, and one person who believed in that, and this is all about Rivers, it’s not about the system. But the real problem here is that we have had a governor who misused the law, a hyena, an Arkansas traveler, and a swamp rat. But despite people trying to pin this problem on one person, instead of abuse of pardons overall, the legislature ultimately voted to transfer pardon and parole authority to this board.

In early 1943, under the administration of Ellis Arnall, who is a kind of pro civil rights governor, the board first took authority, Arnall appointed the three member board and announced his intention to completely remove himself from the pardon process. “I am never going to bother them anymore,” he said, “I’m never going to ask the board to pardon or parole a soul.” And he went on later to highlight how difficult it was and how complex it was to consider pardons, or at least how difficult and complex it should be to consider pardons. He said, “I think the question of whether a man should be freed from prison is worth an hour’s time. It is not a matter to be decided without study.” The governor cannot devote his time to the work, some agency must, and we created such an agency, and the, quote, unquote, “pardon racket” that had disgraced Georgia was ended that day.

Heather Cox Richardson:

The thing that interests me about the construction of this Georgia Parole Board is partly that it was so corrupt that even in Georgia under those circumstances, people were like, “We got to clean this up.” And that there were a number of people who said, “No, no, no, no, we need to keep this system.” Well, why do you think they wanted to keep that corrupt system? So we’re coming around here, it seems to me, full circle, and one of the pieces that I think ties together the idea of mercy and the idea of power and also the idea of corruption is that all three of those things might be in play or might not be in play, but when you are an executive offering a pardon or giving a pardon, it is possible to do it for a corrupt reason and then say, “Oh, I’m just being merciful.”

You can use any one of those to cover up what you’re actually doing. And that, I think, matters here when we talk about the potential pardoning of people who are implicated in the attempt to overturn the results of the 2020 presidential election, is that the idea, “Oh, we’re doing it for mercy’s sake.” Well, we tried mercy’s sake in the middle of the 19th century, and we are literally today dealing with the outcome of those pardons. And imagine if Johnson had not pardoned them, we would not have people flying Confederate flags now if people had gone to prison and some might’ve been executed and treason was made odious, which is what Johnson initially promised.

Joanne Freeman:

So mercy as a reason doesn’t necessarily work. Neither does the claim that having a pardon is going to somehow create national unity.

Heather Cox Richardson:

So that was why I wanted to talk about the Whiskey Rebellion. Is it a question of the scope, the size and scope of something? Because the reality is the Whiskey Rebellion was quite limited in size. I mean, it was big for the time, but they’re backwoods farmers who were trying to get their corn to market basically, versus the Confederacy, which was not popular when it organized. But of course after four years of war, people bonded over the idea that they were fighting for their families and their brothers and all that sort of thing. And it became all-encompassing in a way that you could pardon somebody for having a conspiracy of four people, I’m making this up, to rob a bank, but it’s a different thing when you are literally trying to take a large percentage of the population, not a huge one, by the way, the South is much smaller than the North, to try and overturn the government, and then not saying, “You can’t do this.”

Joanne Freeman:

But in the early period, you’re right, it’s small numbers. In the case of the Whiskey Rebellion, John Adams issues a few pardons for people who took part in another rebellion, Thomas Jefferson issues some pardons for people convicted under the Alien and Sedition Acts, and those are not big numbers. But what was in play in that period was the absolute conviction that one little rebellion could bring the whole government down. It’s seven years old, it’s eight years old. There’s no guarantee, there’s no absolute strength in this government yet, it’s untried and a lot of people aren’t sure that they necessarily believe in it. So that’s a complicating factor in the early period that continues, but not in the same way, over time.

Heather Cox Richardson:

Okay. Because I’m looking at one of the things that the former president has said he would do if he regains power is to pardon everybody who has been convicted and is now serving jail terms for their participation in the insurrection. I’m following that really closely, and I think it’s a real deterrent. It’s one thing to sort of show up and throw your weight around and be like, “I’m going to take over the country,” when you don’t think there’s going to be any kind of a punishment for that. The same way that former Confederates didn’t think there was going to be any sort of a punishment for continuing to abuse their Black neighbors after the Civil War. I think if you take away that deterrent and the implication that this is not what our society does, this is not okay, then the whole freaking thing falls apart. The whole idea of a nation that has institutions to which we owe an obligation falls apart because it turns out we don’t have those institutions to which we owe an obligation.

Joanne Freeman:

And I want to highlight the hierarchy of power that we’re talking about here, the structure of power, which is a great example just how generally in the American system checks and balances were put in place explicitly to carve up power in different ways, to make so that a system itself is ideally going to prevent abuses of power. And by that I mean a President of the United States can pardon people who commit crimes against the United States, meaning federal crimes. He cannot pardon people who commit crimes on a state level. On a state level, in states like Georgia, the governor cannot pardon people, it has to be this separate board. And again, this goes all the way back to where we started talking, the constitutional convention where they’re trying to figure out what does it mean when someone has the power to do this? What does it do to his power? What does it do to open up corruption? What does it do to lead to tyranny?

From the very beginning, the constitutional convention, almost more than anything else, was centered on power. How much power do people in the government, branches of the government, how much power do they have within the government? How much power do they have over the citizens of the United States? And granted, that the entire Constitution and the convention was about deciding questions of power. You can see why pardon, the idea of a pardon caused debate. And you can see why, throughout American history, pardons remain something that are controversial because in one way or another still they are assertions of power, and the question is, who has that power and what does that mean?