When the Constitution granted to the President exclusive power to pardon federal criminal convictions, did it carry a strand of royal prerogatives or instead a feature of the checks and balances designed for the new democratic republic? Founding Father Alexander Hamilton predicted that a “well-timed offer of pardon. . . . to the rebels” engaged in insurrection could “restore the tranquility of the commonwealth” speedily, without the delays that legislative consideration would require. The framers feared a legislature with too much power, and hence they allowed for presidential pardons even for federal convictions under laws enacted over the President’s veto.
We live now in a world very different than the one the framers imagined—a world with political parties and extreme partisanship; an exceedingly powerful executive branch; campaign finance and gerrymandering practices hamstringing congressional checks on the presidency; 24/7 digital news; and a current holder of the presidency who revels in chaos, breaking norms, and using governmental powers to serve himself.
Other presidents, at times, have used the pardon power in controversial ways. President Bill Clinton pardoned his brother, Roger, for drug trafficking and possession and pardoned campaign contributor and fugitive Marc Rich, who’d been convicted of racketeering and tax evasion. President George W. Bush’s commutation of Scooter Libby’s sentence followed his conviction for leaking the covert identity of a U.S. spy. Before the presidency of Donald Trump, the most controversial presidential pardon probably was Gerald Ford’s treatment of Richard Nixon, who resigned office after extensive illegal activities against the Democratic National Committee. Did Ford promise Nixon a pardon in exchange for the resignation that made Ford President? Or did Ford hope to quell political divisions and put the “national nightmare” to rest, as he also granted amnesty (conditioned on public service) to individuals who evaded the military draft during the Vietnam War? Either way, the electorate retained the ultimate democratic sanction, and did not return Ford to the White House for a new term of office.
That electoral sanction remains a central democratic check on the presidential pardon power. Other limitations on the presidential pardon power include the explicit exception “in cases of impeachment” and the confinement of the power to federal crimes, putting state crimes beyond the President’s reach. Reputational concerns and soft norms, however, do not currently constrain use of pardon power. For the most part bypassing the 125-year-old review process established to advise presidential pardons, Trump deploys pardons and commutations to advance his own political goals, to reward people he knows personally, to express admiration for celebrity, and perhaps to extract a quid pro quo, such as a campaign endorsement or refusal to assist investigations into his own misconduct.
The current situation was far from the contemplation of Founding Father James Iredell of North Carolina, who advocated vesting the pardon power solely in the President who would be “a man who had received such strong proofs of his possessing the highest confidence of the people.”
Most shockingly, Trump has repeatedly asserted “an absolute right to PARDON myself.” He acts with the apparent impunity of a President governing after a failed impeachment inquiry. Amid concerns from diverse quarters about voter suppression and “rigged election” practices during a pandemic, democratic accountability is at risk.
Short of a constitutional amendment, would any further limitations on the presidential pardon power be constitutional? Would they help? The constitution’s framers considered but declined a proposal for Senate approval of presidential pardons. Nearer our time, Senator Walter Mondale proposed a constitutional amendment barring a pardon if two-thirds of Congress disapproved, but it died in committee. A federal court might check a pardon as unconstitutional for breaching other provisions of the Constitution if, for example, a President confined the pardon power to people of one religion or one race. But most likely, Congress would dodge the matter as a political question.
Some presidential pardons might breach existing laws of Congress prohibiting bribery and obstruction of justice. The federal prosecutors, though, can claim the law is ambiguous. They also can be fired by the President. Congress could enact a new law making it a crime for a President to offer to sell or to actually sell a pardon for personal financial gain, for assistance to benefit the President’s family, or to assist the President’s re-election. Congress could authorize a new crime to punish anyone granting or accepting a presidential pardon in exchange for a campaign contribution or other bribery as this governs the terms of the pardon, not the grant itself. And a new law could suspend the statute of limitations for any crime committed by a President while in office to avoid immunizing against prosecution after departing office. Members of Congress would have to summon the courage to take such actions. Congressional investigation of these issues could at a minimum register concerns and solicit legal opinions within the congressional system about the constitutional avenues for curbing abuses of the pardon power.
But prohibiting a self-pardon presents a genuine difficulty. Experts disagree about whether it is permitted by the breadth of the Constitution’s language or prohibited by the reference to authorization for subsequent criminal trial for a person convicted after impeachment. The traditional views that no person can be the judge of his or her own case and that no one is above the law seem to call for legislative enactments to overcome any doubts about their application to the U.S. President.
The risk of a self-pardon exposes the tension lying in wait since the framers cut and paste the prerogative of royalty into a constitutional democracy. Modern constitutions, like South Africa’s, make clear that exercise of any executive power is reviewable by the courts and commit the executive to follow the rule of law. Where the pardon power lacks real limitations, a watching public can and must express its disapproval. The vitality of democracy ultimately depends on its people.