It is time for America to end the unilateral pardon power of the president. Donald Trump has abused the pardon power granted him in Article II, Section 2 of the Constitution. He threatens to do so much more boldly in the years to come, as convicted associates have been lobbying him for pardons. Trump has erased criminal penalties for ideologically allied individuals like former sheriff Joseph Arpaio and far-right pundit Dinesh D’Souza. For apparent point-scoring with his base, he has also pardoned Navy SEAL Edward Gallagher, reversing the results of a rigorous military justice process that saw Gallagher’s own peers in the military decide that he had violated the UCMJ.
These unilateral actions don’t just undermine fairness. They invite a range of future crimes, ranging from reckless and racist law enforcement (Arpaio), to fleeing justice and tax fraud (President Clinton’s pardon of financier Marc Rich), to wanton military atrocity in defiance of the chain of command (Gallagher). As the Post’s Colbert King recently predicted, there is now a good chance Trump will use the pardon to reverse legitimate criminal investigations, indictments and convictions of his associates, ranging from Gen. Michael Flynn to Paul Manafort and Roger Stone. (Restricting the pardon power during impeachment investigations, as some have argued, wouldn’t address these and the vast majority of other pardons, which were separate from the impeachment investigation.) The president can summarily undo the results of painstaking investigations and, not least, the unanimous decisions of juries. Because federal investigations (including congressional subpoenas) depend upon the threat of penalty for non-compliance, perjury or obstruction of justice, the entire architecture of presidential and administrative oversight can, in theory, be undone by abusive pardons.
Any attempt to reform the pardon power has to confront two realities in tension. First, the pardon power as currently constructed threatens to undermine the separation of powers and enable vast corruption. If the president directs others to do all of his wrongdoing and then promises (ahead of time or after the fact) to pardon those involved, he can thwart legitimate investigations. Impeachment, conviction, and removal are no bulwark against this threat. In a polarized world, the supermajorities required for Senate conviction will not materialize unless the president loses an appreciable chunk of his legislative allies.
Second, pardons and commutations can serve good and humane purposes. Particularly in the present era of mass incarceration—a scourge that afflicts people of color and the poor at a far higher rate than white and wealthier Americans – commutation in particular can help redress structural and individual injustices. Oklahoma’s recent commutation of 527 criminal sentences is, one hopes, just the beginning of a wider trend, but coming from a conservative state like Oklahoma (currently dominated by Republicans), it shows the promise of cross-partisan, multi-branch approaches to criminal justice.
I propose a simple constitutional reform that would preserve the federal government’s ability to pardon but would take it out of the hands of the president. Anyone (including the president) could propose a slate of individuals to be pardoned, and that slate would then require two-thirds approval by both the House and the Senate to take effect. We could add a commission to the front end that investigates pardon-deserving individuals and propose a slate to the Congress, but the ultimate say would rest with congressional supermajorities. That’s basically it.
Pardons have been used by monarchs since the European Middle Ages, when subjects often petitioned the king for mercy. That executive history of the pardon is one reason why the federal Constitution and many state constitutions leave pardon power in the hands of the chief executive. Yet we are now in a world where this power can be too readily abused, in part to obstruct anticorruption efforts, legislative oversight, and judicial functioning. Clinton’s pardon of the financier Marc Rich—who had previously donated to his campaign—shows that Republicans do not have a monopoly on this abuse.
My proposal accords with historical and contemporary practice. In modern-day state governments and in European history, actors other than kings and governors have accorded grace and mercy to their subjects. In medieval and early-modern England and France, subjects petitioned collective bodies (the English Parliament, or the French Chambre des Requêtes) for their mercy. Oklahoma’s commutation measure followed from a voter-approved ballot initiative, but also from a bipartisan statute to retroactively apply that measure.
The U.S. Constitution is notoriously difficult to amend, requiring supermajorities in each chamber of Congress and then ratification by three-quarters of state legislatures. Yet a president who actively campaigned for pardon reform could construct powerful arguments for the plan. “I will take this power away from myself and every successor and return it to the people acting in consensus,” a candidate could say, promising to shackle the designs of a future would-be autocrat. A future Republican candidate could remind voters that the power would be taken away from future Democrats as well as himself, and vice versa.
The pardon measures that passed under a reform system might, to be sure, embed troublesome compromises. Perhaps a Roger Stone would be pardoned along with a Marc Rich in a cross-partisan deal. Yet a system with such problems would be far superior to the one we have now. First, the people responsible for voting for the pardon would, unlike a second-term president, stand for re-election. They would be held electorally accountable for their votes. Second, a supermajority bipartisan pardon would prevent a single president from abusing the pardon. The specter of president using the pardon power to quash or hinder investigations into their own wrongdoing, or that of their allies, would materialize only if that president’s party had a supermajority in both chambers of Congress. If a future corrupt president had any such supermajority, then America would be facing much bigger problems than the pardon alone.
If Oklahoma can grant mercy by democratic consensus and separate pardons from the executive, so can the federal government. A plan to reform the pardon should preserve the compassion that our institutions allow while removing the abusive monopoly that presidents have over them.
