Ending Corrupt Pardons

Reforming how presidential pardons are awarded presents a rare bipartisan opportunity.

By Daniel Carpenter Harold Pollack

Tagged CorruptionpoliticsPresident

In a recent lawsuit, Noelle Dunphy alleges that her former employer, Rudolph Giuliani, offered himself as an intermediary in a scheme to buy presidential pardons. In the words of the complaint, Giuliani “asked Ms. Dunphy if she knew anyone in need of a pardon, telling her that he was selling pardons for $2 million, which he and President Trump would split.” We do not know the truth of these allegations, which remain in legal dispute. We do know that such a scheme is sadly plausible.

Here’s another plausible scenario. Imagine it’s July 2025. President Biden has been reelected. Republicans initiate an obviously partisan investigation of Hunter Biden. But then, contrary to Democrats’ hopes and expectations, Republican efforts yield clear evidence that Hunter Biden likely committed more serious federal crimes than were covered under his current plea agreement. He flees to China to avoid further questioning. Then comes the shocker. President Biden announces: “Whatever some computer file may indicate, I give you my word as a Biden—Hunter may have shown bad judgment, but he did not intentionally commit federal crimes. I hereby pardon him.” Republicans and many Democrats howl, but there’s nothing they can do.

Or again imagine it’s July 2025, but Donald Trump has won the 2024 election. He fulfills his September 2022 pledge to pardon January 6 rioters. Then Jared Kushner hits unexpected legal difficulties, having been found to have shared classified information with Saudi business partners in return for large payments. A Wisconsin “poll watch” group runs into trouble for destroying 10,000 absentee ballots from majority-Black Milwaukee neighborhoods. President Trump pardons Kushner and the Wisconsin poll watchers while lambasting “deep-state FBI thugs.” Or imagine—even more outrageously, but again, all too plausibly—that Trump, who by that time might well have been convicted of one or several crimes, pardons himself, as he has reportedly suggested he may do. Now it’s the Democrats who howl (and perhaps a few Republicans). But again, there’s nothing they can do.

Given our current polarization, not to mention the epic scandals of the Trump years, such possibilities seem much less far-fetched than they did 15 years ago. They also create an ironic bipartisan opportunity for the two parties to act together, to reform all presidents’ ability to pardon relatives and friends, not to mention political cronies and co-conspirators.

The President has remarkable authority to issue such pardons. Given the everyday realities and failures of our legal system, presidential pardons have a legitimate place. Many pardon recipients are plausible victims of serious injustices—people given exorbitant sentences for nonviolent drug offenses, those convicted in cases tinged with racism, and more.

Then there are other pardons: President Clinton’s out-the-door pardon of donor (and white-collar criminal) Marc Rich; Trump’s pardons of Paul Manafort, Roger Stone, and Charles Kushner. In principle, the President is constrained from grossly improper pardons through historical norms and the threat of impeachment. In practice, there are no guardrails. Presidents have nearly unfettered power to pardon allies who violate election laws, or to pardon co-conspirators in criminal acts ranging from tax evasion to obstruction of justice to even insurrection.

Whatever one believes are proper presidential powers to make war, build walls, regulate carbon, or forgive student loans, no single human should have the power to deploy pardons as a tool of criminal conspiracy, authoritarian politics, or some kleptocratic combination of these things. The President’s pardon powers have traditionally been unregulated—constrained, if at all, through social and political norms. Given the President’s unilateral pardon powers and the practical obstacles to successful impeachment, presidential wrongdoing is remarkably difficult to punish or deter through the usual mechanisms deployed when other Americans commit serious crimes.

The crimes of the Trump era, culminating in January 6, 2021, remind us that we need more. We need concrete reforms to ensure that pardons remain focused on legitimate compassionate and social justice purposes, and that they do not become tools of any President’s desire to shield themselves, their relatives, or their political cronies from legal accountability.

President Biden rightly emphasizes that American democracy is in jeopardy. Voters’ concerns over these issues provided one reason for Democrats’ relative success in the 2022 midterms. Now the President has one small, clear, and significant opportunity to address this problem. He can ask Congress to limit his own power, through new legislation we have called the Presidential Pardons Advisory Commission Act of 2023.

Under this act, the President and Congress would establish a 24-person Presidential Pardons Advisory Commission, evenly divided between Democrats and Republicans. The President would propose to this commission the list of individuals he wishes to pardon. The commission would then review and vote on each nominee within 90 days and return a list of candidates who received support from at least 18 members. In its final legislative language, the act would specify that were the President to pardon any relative, political ally, or associate not on the list—or themselves without the commission’s approval—Congress would consider this to be an impeachable offense.

Some of our Democratic friends might balk at this: Why should Democrats unilaterally disarm after the Trump years? This is not unilateral disarmament. It serves no proper political or policy goal for a Democratic President to have the power to pardon his son or a political donor. Nor does this law provide Republican legislators any powers they do not already have.

Others might worry that this commission would find itself in partisan gridlock, with perpetual tied votes. While we can’t rule out this possibility, the cases of most pardon candidates have limited partisan valence. Moreover, the President retains the legal right to issue pardons with no threat of impeachment when there is no personal or political tie to the individual considered for a pardon.

Some of our friends in the legal profession might also balk. We recognize the Constitution’s Article II pardon power. Any statute seeking to eliminate this power would likely, and probably rightly, be struck down by the courts. Our proposal respects Article II. We seek to establish norms and advisory processes whereby the President can more properly exercise these powers. An advisory committee of this nature passes constitutional muster.

The founders believed that elections, or the sequential process of impeachment, would be the best remedy for abusive behavior. Yet their reliance upon republican principles (including supermajority requirements in the impeachment process) should not rule out intermediate solutions. Institutions that stoke public debate about who is worthy of a pardon and who is not make this process more transparent, and thus lend it greater public legitimacy. In a post-January 6 world, pardon reform may also help to curb obvious abuses of presidential power that pose clear threats to American democracy.

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Daniel Carpenter is the Allie S. Freed Professor of Government and Chair of the Department of Government at Harvard University.

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Harold Pollack is the Helen Ross Professor of Social Work, Policy, and Practice at the University of Chicago.

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