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.