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How to Prevent Abuse of the President’s Pardon Power

There are several steps Congress can take to ensure that the clemency power is used appropriately.

February 24, 2021
White House

In the wake of contro­ver­sial pardons by Donald Trump, as well as his consid­er­a­tion of pardon­ing himself, I recently test­i­fied before a House panel for a hear­ing about how to prevent abuse of the clem­ency power.

The Consti­tu­tion gives the pres­id­ent “power to grant reprieves and pardons for offenses against the United States, except in cases of impeach­ment.” This provi­sion allows the pres­id­ent to address injustices and show mercy — some­thing that happens far too infre­quently in the era of mass incar­cer­a­tion.

The breadth of this power has also made it suscept­ible to misuse. For example, Pres­id­ent George H.W. Bush gran­ted a pardon to former Defense Secret­ary Caspar Wein­ber­ger and five others convicted in the Iran-Contra scan­dal. And Pres­id­ent Bill Clin­ton was condemned for his pardon of fugit­ive Marc Rich, a finan­cier who had been indicted for multiple finan­cial crimes. The pardon drew criti­cism in part because Rich’s former wife had donated to the Clin­ton Pres­id­en­tial Library and Hillary Clin­ton’s Senate campaign.

Donald Trump went even farther in grant­ing ques­tion­able pardons. On his final day in office, he pardoned 74 people and commuted the sentences of 70 others. This list included a rogues’ gallery of the well-connec­ted, includ­ing Salomon Melgen, who was convicted of defraud­ing Medi­care of $75 million, as well as Steve Bannon, who had been indicted for fraud in connec­tion with a nonprofit he set up to raise money for the border wall. These pardons followed those gran­ted to disgraced former members of Congress, Jared Kush­ner’s father, and allies caught up in the special coun­sel’s Russia invest­ig­a­tion, such as Michael Flynn and George Papado­poulos. While Trump did not attempt a “self-pardon” nor pardon family members, his actions did bring a harsh spot­light to prob­lems with the pardon power.

How can the pardon power be reformed consti­tu­tion­ally? Even without congres­sional action, there are some well-recog­nized limits on its exer­cise: it only covers federal crimes and may not be used to obstruct justice. Further, a self-pardon is consti­tu­tion­ally suspect. More must be done to clarify and strengthen these limits.

Obvi­ously, the most signi­fic­ant reform would be through consti­tu­tional amend­ment. One proposal intro­duced by Rep. Steve Cohen (D-TN) would bar pardons for one’s self, family, and close advisers, as well as for actions person­ally bene­fit­ting the pres­id­ent, crimes commit­ted with the pres­id­ent, or pardons gran­ted for a “corrupt purpose.”

Short of amend­ing the Consti­tu­tion, Congress could limit the pardon power legis­lat­ively. One bill, the Protect­ing Our Demo­cracy Act, would require the Justice Depart­ment and the pres­id­ent to provide Congress mater­i­als pertain­ing to a pardoned indi­vidu­al’s prosec­u­tion and pardon. The bill would also make it clear that pardons could not be doled out in exchange for bribes. Another provi­sion would outlaw self-pardons.

There is strong reason to believe this legis­la­tion would with­stand consti­tu­tional chal­lenges. With respect to the bribery provi­sions, it is widely accep­ted that Congress may impose crim­inal penal­ties on a pres­id­en­tial pardon issued to bribe a recip­i­ent. Moreover, DOJ has issued two opin­ions consist­ent with this under­stand­ing. The more recent one, from 1995, concluded that apply­ing the federal bribery stat­ute to the pres­id­ent “raises no separ­a­tion of powers ques­tion, let alone a seri­ous one.”

As to the provi­sion banning self-pardons, in 1974, the DOJ Office of Legal Coun­sel issued an opin­ion that such a pardon was ille­git­im­ate. Since that opin­ion has never been tested, we cannot know exactly how a court might approach the ques­tion, although it certainly has the merit of fall­ing on the side of common sense, the normal usage of the word “to grant,” and the histor­ical under­stand­ing that the use of the pardon was a matter of grace by the exec­ut­ive.

Another bill would require the pres­id­ent to publish the issue date, recip­i­ent, and full text of each pardon or reprieve. Such legis­la­tion would bring public atten­tion and poten­tial condem­na­tion for ill-considered grants. To minim­ize any burden on the pres­id­ent, the report­ing require­ment should apply only in cases where the indi­vidual seek­ing a pardon has a close personal, profes­sional, or finan­cial rela­tion­ship to the pres­id­ent. As a corol­lary, in courts, a similar rela­tion­ship typic­ally warrants recusal by a condemning self-pardons.


Another area where Congress can help police the pardon power is simply through its over­sight and invest­ig­at­ive powers. Hear­ings focused on Trump’s most egre­gious pardons would raise public aware­ness of his misdeeds, even if not crim­inal, and provide strength to deterrence in the future.

The pres­id­ent’s abil­ity to pardon is an awesome power. When used as inten­ded, it is a power­ful tool for justice. However, it can also be a tool of greed and perver­sion if used inap­pro­pri­ately and contrary to its purpose. Congress is right to take up the task of restor­ing the pardon to its status as a bene­vol­ent power.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.