A pandemic, a struggling economy, a media system that overhypes immigration issues, and a Republican Party that is hellbent on crippling democracy. President Biden and the Democrats have a lot on their plate. Where should reform of the president’s constitutional pardon power land on their to-do list?
In January and February, I wrote columns here on Verdict in which I described—with disdain and amazement—how wrong the conventional wisdom in both parties is about a president’s supposedly limitless and unreviewable Article II power to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Later in this column, I will summarize the legal basis for the conclusion that the president’s power to pardon is both limited and reviewable. First, however, it is essential to understand what is at stake. Because of all of the other enormous problems facing the country, it is tempting to think that reforming the pardon is one of those things that is important but not essential, like putting off fixing a sewer system for one more year. As we know, however, putting off that kind of thing year after year can lead to an awful mess. Some things are foundational, and we ignore them at our peril.
In the end, pardon reform is an essential part of maintaining a non-autocratic form of government. And because the first sitting executive to whom it would apply is President Joe Biden, it might even be one of those agenda items that would receive the one (meaningless) thing that Beltway insiders love: bipartisan support.
A President with Unchecked Pardon Power Is a Dictator in Waiting
Donald Trump survived his first impeachment for many reasons, but one of the most important was that potential witnesses against him received signals that they did not need to enter into non-prosecution deals in exchange for their testimony against Trump. And Trump came through, to Roger Stone, Paul Manafort, and others.
In response to one of my earlier Verdict columns on this topic, a particularly dim but energetic reader sent me a long, ranting email that amounted to saying, “Oh, you say Trump’s pardons were corrupt? Well, what about Clinton’s and Obama’s? Huh? What about them?” He then provided a six-degrees-of-Kevin-Bacon conspiracy theory connecting the 1960’s “weathermen” to Barack Obama. As entertaining as that was, the bigger point that I was apparently supposed to get from that trip down the rabbit hole is that other presidents have issued unjust pardons. The only answer to that assertion, of course, is: This merely strengthens the case for revisiting the president’s pardon power. If we could go back in time and undo Bill Clinton’s pardons of, say, his brother Roger Clinton and Marc Rich, I would cheer, not mourn. Corrupt acts are corrupt acts.
The difference between Trump and the others, however, is that Trump’s pardons were directly aimed at people who were protecting him from exposure of his own deep and wide corruption. Trump, therefore, made it abundantly clear that a president who is utterly shameless in abusing the pardon power is a threat to our constitutional system itself.
Presidents and governors have long waited until the ends of their terms to issue pardons. Sometimes, they do so for the very reason that we allow executives to issue pardons: some justified pardons are likely to be politically unpopular. Someone who deserved to go to prison for a heinous act but who served decades behind bars and became a model prisoner might deserve mercy, but only an executive who is not going to face the voters could do the right thing. Attempts to do justice, no matter how justified, are still easy for tabloids and political opportunists to exploit, so waiting until after elections to issue pardons is sensible.
Trump, however, exploited the hyperpartisanship that he had so energetically exacerbated, knowing that he was in no danger of being removed from office for pardoning people well before the election. He let Roger Stone off the hook in the middle of 2020, for example, proving that he did not worry about any of the supposed checks on his abuse of power. In an election during which people were worried about the pandemic and Trump’s open encouragement of White nationalists, he knew that his pardons would not change the outcome; and because Senate Republicans were completely in the bag (as they proved later, when 43 of them refused to convict him even after the January 6 insurrection), he acted with impunity. He would not be stopped from granting corrupt pardons by the voters, and he knew that impeachment was no threat. The judgment of history never mattered to him. Power did.
In short, Trump allowed his party to continue to ignore his abuses of power by hiding the evidence of those very abuses of power. “He just pardoned Mr. X, and although we might think that Mr. X was going to badly damage Trump in court, now we’ll never know,” is enough to allow a Republican senator to say, “This doesn’t rise to the level of an impeachable offense, because we simply don’t know.”
A president who can keep the public and the supposed watchdogs in Congress and the press in the dark by keeping evidence hidden is a president who can get away with continued corruption. If a Trump wannabe (or Trump himself) were to become president in the future, he could obstruct justice by abusing the pardon power, ultimately making it possible to stay in office by making himself the ultimate arbiter of who goes to jail and who does not.
Of course, that assumes that another dose of Trumpism in the Oval Office would leave the justice system intact enough for any of that to matter. It is possible that the courts and the Justice Department could become so badly corrupted that a president would not need to dangle pardons to keep people quiet. Until we reach that point, however, an unchecked pardon power is—as Trump demonstrated in a way that no previous president has—a one-way ticket to autocracy.
The Pardon Power Is Reviewable and Limited
In my prior Verdict columns discussing pardons, I made the following points about the pardon power:
The constitutional text is, at best, unclear. Presidents have “power” to grant pardons and reprieves, but there is no modifier. It says neither “unlimited and unreviewable power” nor “narrow and circumscribed power.” Other constitutional provisions—including First Amendment provisions regarding free speech—are similarly unbounded in the text but have been sensibly limited by courts, such as prohibitions on incitement, shouting “Fire!” in a crowded theater, and so on. It is truly odd that lawyers across the political spectrum have acted as if the provision creating the pardon power is unambiguous, when it is anything but.
- The Supreme Court case to which naïve reporters point, 1866’s Ex Parte Garland, does indeed say that the pardon power is “unlimited,” but that opinion then very clearly describes a pardon power that is in fact limited. More to the point, Garland held that Congress could not decide that a particular kind of offense was beyond the pardon power (in the aftermath of the Civil War, certain offenses were especially relevant), so the Court’s statement that the pardon power was “unlimited” was a statement that the range of offenses that could be pardoned could not be limited by Congress.
- The Garland court most assuredly reviewed the pardon power rather than declaring the question nonjusticiable, and it recognized some limits on that power—for example, declaring (outside of the naively broad reading of the constitutional text that nearly everyone seems to take as gospel) that pardons for future crimes would not be valid. The upshot of that case, then, is that the courts can and have reviewed and limited the president’s pardon power.
- The absence of other judicial decisions limiting the pardon power in no way proves that the pardon power is unlimited. Gerald Ford’s “full, free, and absolute pardon” of Richard Nixon probably exceeded the pardon power, for example, because it was hopelessly vague. That pardon was not challenged, however, so it has never been declared by the courts to be valid or invalid. That does not mean that there are no limits. It only means that any limits have not yet been delineated by the courts.
- The pardon power was included in the Constitution for a very specific purpose, which is to allow the justice system to have a safety valve of mercy. Indeed, Alexander Hamilton’s argument for putting the power into one person’s hands was that committees of people might become embroiled in narrow political standoffs, and he wanted one person to be able to step in and do justice when the justice system had steamrolled someone unfairly.
This is an undeveloped area of the law precisely because pre-Trump presidents did not abuse the power in the ways that he did. Even the higher-profile misuses of the pardon have either been merely venal (pardoning a crony, or possibly exchanging money for pardons) or avowedly for a larger purpose (allowing the country to heal after Nixon’s resignation). There is nothing to stop Congress and the courts from acting now, not after the master class that Trump provided in self-dealing pardons, where self-dealing went far beyond the narrowly venal to full-on corruption of the justice system in order to install himself permanently in power.
What Can Be Done, by Congress or the Courts?
Prior to Trump, presidents over the decades had created an internal review system for pardon applications that followed principles of due process. The decision was ultimately the president’s, but lawyers reviewed applications and tried to create a process that could be explained and defended in the open. Trump eliminated all of that.
Could Congress force the current and future presidents to follow some kind of regular process in deciding whether to issue pardons? The Garland decision does say that Congress cannot limit the range of offenses for which pardons can be considered, but the Court did not say—because it was not asked—whether Congress could require a president to engage in a non-arbitrary process. It is fully consistent with the language of Article II for Congress to say that, although a president has power to grant reprieves, he cannot do so whimsically or for purely his own political interests.
It is possible, of course, that the current Supreme Court would reject any such limitation. That we cannot say for sure how such a challenge would turn out, however, highlights that the constitutional language does not create a slam dunk in either direction. This is not, for example, a matter of limiting the presidency to people who are at least 35 years of age. This is a question of whether the separation of powers allows one branch to force another to engage in a deliberative process while leaving the ultimate decision to the executive branch. Congress would not be seizing the pardon power for itself but requiring the president to exercise his power responsibly and for constitutionally permissible reasons.
Short of congressional action, could the courts themselves act? There, we would need someone actually to challenge a pardon, and at this point, the Biden administration is understandably not showing any interest in opening that can of worms by having federal prosecutors try to prosecute one of Trump’s pardoned associates. It is true that, as The Washington Post recently reported, former Trump advisor Steve “Bannon [is] battling prosecutors who won’t dismiss his case after Trump’s pardon,” but that is a far cry from prosecutors actually trying to nullify any of Trump’s pardons.
Without a direct effort to charge and try a recipient of one of Trump’s pardons, an alternative approach would be for courts themselves to challenge pardons, on the basis that a court’s order cannot be set aside by an unconstitutional pardon. There was some hint that this might happen after Trump’s first high-profile pardon (of the notoriously racist former sheriff Joe Arpaio), but as far as I know, that did not lead anywhere.
There is also an interesting angle from which a pardon could be challenged under the Federal Rules of Evidence. Rule 609 generally requires courts (civil and criminal) to allow a party to try to challenge the credibility of a witness by pointing out that the witness is a felon. Not all pardons negate this challenge, but some do. Thus, it is possible that a party could have standing to challenge a pardon because their interests at trial were harmed by the testimony of a witness whose pardon is unconstitutional.
But would a party even try to bring that challenge, especially given how relentlessly the conventional wisdom has repeated the falsehood that the pardon power is absolute? It is possible, and I hope it happens, but it seems unlikely. Similarly, one could imagine state-level criminal proceedings in which evidence of a federal felony would change the outcome (especially at sentencing), so it is possible (but still not probable, given the degree of difficulty) for a non-federal district attorney to challenge a Trump pardon.
Even so, it would be much better for a federal court to receive a direct challenge by a U.S. Attorney to a Trump pardon. If that were to happen, what could the Supreme Court do?
Note that having the courts do this directly would sidestep the possibility that Garland would be misread to prevent Congress from intervening in the pardon process in any way. Because the Garland court explicitly allowed itself to review and limit the pardon power, there would be no bar to having the courts intervene.
Would this be a classic example of “legislating from the bench”? Not at all. Courts can and should be in the business of guaranteeing due process, and courts have every reason to make sure that what is otherwise a constitutional action includes safeguards for all people who might be eligible for pardons (and for the public at large).
The courts could, in other words, announce that the president has the power to grant pardons for any offense but that he must do so through a transparent and regular process. Just as the courts can require a president not to abuse prosecutorial discretion, and just as courts have sometimes struck down executive orders, the courts could achieve the same thing that Congress would do in my suggestion above: strike down pardons that were granted without adequate procedure. Even if Congress were not permitted to require it, the courts certainly can.
Would the Supreme Court approve of any of this? As I noted above, it is possible that they would view all of this as a step too far, but it is difficult to see why. Anything that Congress enacted, if approved by the Court, would apply going forward to all presidents, including Joe Biden. Anything that courts did on their own would similarly affect not just old pardons but future ones as well. (And the Court could even declare that old pardons are not subject to the new rule, although I would hope not.)
As I mentioned above, people who fetishize bipartisanship might be pleasantly surprised by the response to this idea, especially as applied prospectively. What Republican wants to say, “I don’t want to prevent Joe Biden from abusing the pardon power, because I assume that my next guy is going to want to abuse it, too”?
In the end, we might not be able to undo much if any of the damage that Trump did via his pardons, but it is at least possible to change the requirements for pardons going forward to prevent their use as a tool of autocracy. This is a higher priority than it might initially appear to be.
