Trump’s Abuses Should Motivate Congress to Rein in Pardon Power

President Donald Trump’s abuses of the pardon power have reached new extremes, underscoring the need for a constitutional amendment to constrain that authority.

Two proposals to limit the president’s constitutional pardon power are currently pending in Congress, but both are profoundly flawed and inadequate.

To restore the pardon to its place as an instrument of justice, Congress shouldn’t just tinker around the edges. Lawmakers should consider major structural change that would allow for the review and veto of the president’s pardons by a panel of judges.

Judges are well suited to the task of reviewing pardons because they have experience evaluating criminal conduct and fair punishment.

Partisan Weapon

Trump’s misuse of the pardon power has transformed it into a partisan weapon and tool for extracting tribute.

Upon taking office, he pardoned those who attacked the US Capitol on Jan. 6, 2021. He has pardoned former members of his administration, campaign advisors, and donors. He has pardoned individuals who helped his crypto businesses, such as Binance founder Changpeng Zhao.

Other presidents have issued questionable pardons: President Joe Biden pardoned his son and other family members; President Bill Clinton pardoned a wealthy financier, Marc Rich, after Rich’s family made substantial donations. President Gerald Ford pardoned President Richard Nixon, who was implicated in the Watergate scandal coverup.

After the Nixon pardon in 1974, Sen. Walter Mondale (D-MN) proposed to amend the Constitution to provide that Congress could override a presidential pardon by a two-thirds vote of each House of Congress.

More than 50 years later, two members of Congress, Democratic Rep. Johnny Olszewski of Maryland and Republican Rep. Don Bacon of Nebraska, have introduced a nearly identical proposal, House Joint Resolution 135. Like the Mondale amendment, Congress should reject the Olszewski-Bacon proposal. Stronger medicine is needed.

Any amendment that relies on congressional supermajorities to check the president’s power is doomed to fail. Partisan loyalties will prevent members of the president’s party from voting to nullify pardons, even when they are egregious, as historical experience with impeachment indicates. If Congress couldn’t convict President Trump for inciting the attack on January 6, then it couldn’t override a pardon of the attackers. A congressional supermajority veto, after the fact, would effectively do nothing to limit his unilateral authority to issue corrupt or partisan pardons.

A different proposal to amend the pardon power has been advanced by Democratic Rep. Steve Cohen of Tennessee and others. The proposal, House Joint Resolution 13, would provide that the president can’t grant certain types of pardons. A president couldn’t pardon himself or herself, family, administration members, or paid campaign staff. These categories would have prohibited some recent pardons. But they would leave untouched the most pernicious partisan and pay-to-play pardons in which individuals, previously unknown to the president, obtain a pardon after making a financial contribution or merely praising him.

The Cohen proposal also would prohibit pardons for offenses directed by or coordinated with the president and those issued for a “corrupt purpose.” But these categories are unclear and the Cohen proposal doesn’t specify whether courts have the power to decide whether a pardon falls into one of the prohibited categories, effectively leaving impeachment as the only remedy for violating the pardon clause, which is close to no remedy at all.

Think Bigger

Reformers should think bigger. The power to pardon is too great to be granted to one person alone. It’s a relic from the age of monarchs. A majority of states don’t entrust their pardon power to the governor alone, but instead rely on multimember boards. In states such as Florida, Minnesota, and Nevada, for example, the chief executive is one member of a clemency or pardons board.

At the federal level, the president should retain the sole authority to propose pardons, subject to veto by a clemency board. In effect, nobody could obtain a pardon without the president’s initiative and proposal decision, making the president the single-most responsible official for exercising the pardon power.

The president’s pardon wouldn’t be effective, however, unless 90 days elapsed without having been vetoed by a clemency board composed of sitting federal judges. The board could consist of five federal judges selected at random from the pool of all circuit judges, to serve for six-year terms, concurrent with their judicial service. A vote of three or more judges within 90 days after the president’s formal proposal would render the pardon ineffective.

Judges could be impeached under existing constitutional standards, but wouldn’t otherwise be removable during their six-year terms. If a judge died or became incapacitated during a six-year term, then another judge would be selected at random to serve for a six-year term.

Consistent with their judicial practice, the board could provide a short statement of reasons for denying a pardon, which would enhance the legitimacy of the process and build public trust. It could issue statements as a board, without identifying an individual author, to emphasize the institutional nature of its reviewing role and to disperse the pressure of checking the executive branch across all the board members. Under this approach, the president’s pardons would presumptively be effective unless denied by an independent body of judges whom, ideally, were selected for their neutrality and nonpartisanship in the first instance.

Any proposed amendment must balance the desire for effective and durable change with the practical need to obtain broad and bipartisan support for the amendment. With this practical dilemma in mind, any amendment could take effect when the next president takes office to avoid the appearance of repudiating or limiting the current president, and to leave uncertain whether the amendment will curtail a Republican’s or Democrat’s powers.

The proposed amendment would maintain future presidents’ initiative while substantially reducing most avenues for corruption, partisanship, and self-dealing. Congress should hold hearings, consider structural change to the pardon power, and send an amendment to the states for ratification.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Brian Sutherland is a partner with the Complex Appellate Litigation Group who frequently litigates democracy-related matters.

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