Turning to a mass grant of clemency covering seventy-seven people, John Kiriakou began not with the recipients but with the constitutional power and its history.
The starting point
He conceded the authority without argument: the president has “the legal right, the constitutional right, to pardon anybody he wants.”[1]
Lincoln
Then came the historical case. “There are stories about Abraham Lincoln staying up late into the night and pardoning people by candlelight,” Kiriakou said — “mostly deserters, because to desert from your army unit in the Civil War was a death sentence. You were to be executed for that.”[1]
The principle he attributes to Lincoln is a single sentence: “he said that no one should be executed for cowardice.”[1] So, in Kiriakou’s account, “he would stay awake at night just signing pardons.”[2]
The image is doing specific work in the argument. Lincoln’s pardons were individual, laborious, granted against a capital penalty and grounded in a stated moral rule.
The modern comparison
Against that, Kiriakou set two claims about the present. The first is volume: “No president has pardoned as many people in American history as Donald Trump has.”[2]
The second is timing. Most presidents, he said, “wait until the period between an election and an inauguration” — so that “between early November and January 20th, we usually see a flood of pardons.”[2] This president, by contrast, “pardons people any time the mood strikes him.”[3]
The theory of what a pardon is for
Kiriakou’s objection is not to the numbers but to the fit. “Many of these people — some might even say most of these people — just aren’t deserving of a pardon,” he said, “if you look at why they were convicted of a crime in the first place.”[3]
He set out the model he thinks the power is meant to follow: “the whole idea of a pardon is that you’ve committed a crime, you’ve admitted to the crime, and then you’ve put your life on the right track — you’ve righted the ship.”[3][4] On that test, he said, Rudy Giuliani does not fit the category, “or many of these other people.”[4]
He noted separately that a federal pardon leaves state exposure untouched, and that in Giuliani’s case a state prison remains a real possibility — whereas nobody in America believed he was ever going to a federal one.