January 14, 2025

Abolish the Presidential Pardon Power

Presidential clemency is no longer necessary or wise. The Constitution ought to be amended to repeal it.

When Bill Clinton used his last hours as president to pardon or commute the sentences of 176 wrongdoers — including two Weather Underground terrorists, Whitewater criminal Susan McDougal, and Marc Rich, a fugitive billionaire racketeer and tax cheat whose family had contributed $1.3 million to the Democratic Party — I wrote that his behavior “reeked of corruption.”

When Donald Trump in 2017 pardoned Joe Arpaio — a brutal Arizona sheriff who boasted of confining inmates in conditions so harsh that they amounted to a “concentration camp” and who engaged in rampant illegal racial profiling — I described the president’s act as “noxious” and a mark of his “disdain for decency in law enforcement.”

Odious as Clinton’s and Trump’s actions were, however, I disagreed with those who said the time had come to abolish or curtail the pardon power. To my mind, the Framers of the Constitution were wise to grant presidents the unfettered “power to grant reprieves and pardons for offenses against the United States.” Though there is potential danger in giving anyone such extraordinary authority to override the legal system, I believed it would be more dangerous not to have some kind of emergency fail-safe to prevent miscarriages of justice. Clinton and Trump were unprincipled scoundrels, but other presidents had used the pardon power for honorable reasons — to reduce national strife, to promote political reconciliation, to rectify grave injustices.

So I continued to think that Alexander Hamilton got it right in Federalist No. 74. He contended that without “exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” In other words, when hard cases make bad law, society needs a way to temper strict justice with mercy.

But I’ve changed my mind.

It was naive of me to imagine that the Clinton/Trump abuses would prove exceptions to the rule. President Biden’s deluge of pardons and commutations in recent weeks makes it clear that the old norm is largely defunct. Presidents now are more likely than ever to deploy clemency not to ensure fairness but to thwart it — not as an act of grace to lower the flames of discord but as a political weapon to protect unrepentant allies and reward supporters.

Biden’s sweeping pardon of his son for any and all federal crimes he committed over the past 10 years was disgraceful, and not only because Biden had repeatedly insisted that he would not do it. The pardon also shut down any law-enforcement investigation into Hunter Biden’s alleged influence-peddling activities, which reportedly involved selling access to the Biden “brand” for millions of dollars.

Worse still was Biden’s commutation last month of the death sentences of 37 of the 40 murderers in federal prison. He issued those commutations as an end run around the legislative process — as a way to nullify a federal law that he opposes (capital punishment) but never asked Congress to repeal. Biden did something similar in 2022, when he announced a “full, complete, and unconditional” pardon for all Americans convicted of marijuana possession, a federal crime under the Controlled Substances Act.

The pardon power wasn’t incorporated into the Constitution so presidents could circumvent federal laws they don’t like. But now that the precedent has been established and repeated, it is all but certain to be exploited by future presidents — starting with Trump, who returns to the White House next week.

At the end of his first term as president, Trump brazenly extended clemency to an array of political allies and aides who had gone to prison for crimes including political corruption, theft, fraud, and witness tampering. In the words of the conservative journal National Review, he “handed out improper pardons” to a “rogues’ gallery of people … rewarded for their prominence or their usefulness to Trump rather than for any injustice done to them.”

Now, with the political wind at Trump’s back, there is every reason to expect the cynical misuse of the clemency power to continue.

Trump has long said that one of his first orders of business after regaining power will be to pardon rioters convicted of crimes committed during the attack on the US Capitol on Jan. 6, 2021. In November, he announced that he would nominate one of his 2021 pardon recipients — Charles Kushner, the father of his son-in-law Jared Kushner — to be US ambassador to France.

Would it surprise anyone if Trump, taking a page from Biden’s playbook, tries to use wholesale pardons to neuter federal laws that get in his way? During the campaign, he called for “one real rough, nasty day” — “one really violent day” — of police action to eradicate crime “immediately.” An aide later said his words were meant in “jest.” But is it inconceivable that a president who campaigned in such terms might grant pardons to any police officers charged with federal civil rights violations for engaging in brutality? Especially after the undeserved clemency that Biden bestowed on 37 vicious murderers?

It would take a constitutional amendment to curtail the pardon power or to abolish it outright. Amending the Constitution isn’t easy; it requires the approval of supermajorities in both houses of Congress and ratification by three-fourths of the states. But pardon abuse has become a bipartisan problem, and proposals for reform have come from both sides of the aisle.

Representative Steve Cohen, a Tennessee Democrat, has introduced a constitutional amendment that would bar presidents from pardoning themselves, their relatives, and current or former members of their administrations or political campaigns. It would make anyone who committed a crime “at the direction of or in coordination with” the president ineligible for a pardon. The amendment would also make clear that “any pardon issued for a corrupt purpose shall be invalid.”

Another approach, proposed by law professor Michael Rappaport, is to ban pardons during the lame duck period following a presidential election. That would at least put an end to the 11th-hour grants of clemency that have been so egregious, like the pardons of Marc Rich and Hunter Biden. Presidents might be less likely to issue such pardons if they had to act before voters went to the polls.

But why go through the ordeal of amending the Constitution only to tinker around the edges of the pardon power? Better to abolish it outright. As Andrew McCarthy, a former federal prosecutor, has observed, presidential clemency made more sense two centuries ago than it does now, when “federal jurisprudence has yielded a revolution in the due-process rights of criminal defendants and in Eighth Amendment protections against cruel and unusual punishments.” A gross miscarriage of justice is far less likely in today’s legal system, when every defendant is guaranteed a lawyer and convictions are routinely challenged on appeal. And when a rectification is needed, McCarthy wrote in 2021, federal courts are much more likely than a president to proceed fairly.

Now that presidents have discovered they can get away with deploying pardons to reward allies, shut down investigations, and evade criminal statutes, they aren’t going to stop. Presidential clemency is no longer necessary or wise. The Constitution ought to be amended to repeal it.

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