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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
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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.