The Volokh Conspiracy

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Volokh Conspiracy

President Trump's Use of the Pardon Power

An analysis finds that Trump is both more stingy and more self-serving than his predecessors in how he has used the pardon power to date


President Trump's decision to commute the sentence of Roger Stone has brought renewed attention to the pardon power. This pardon is egregious, perhaps even corrupt, but it is perfectly lawful.

The President's power to issue pardons is fairly absolute. The President has the unilateral authority to issue pardons. and this power cannot be constrained by Congress. House Speaker Nancy Pelosi's proposal to limit how the pardon power is used is almost certainly unconstitutional, and the fact that Trump may benefit personally from his uses of the pardon power does not make the pardons or commutations any less valid.

This is not the first time President Trump has used the pardon power to help a friend or ally. In fact, he seems primarily interested in using the pardon power for such purposes. As Jack Goldsmith and Matt Gluck found when they analyzed Trump's use of the pardon power: "Almost all of the beneficiaries of Trump's pardons and commutations have had a personal or political connection to the president." Indeed, they found that " no president in American history comes close to matching Trump's systematically self-serving use of the pardon power."

At the same time as he has used the pardon power for his own self-interest—as opposed to for the purpose of doing justice—President Trump has used the pardon power less frequently than his predecessors. As Goldsmith and Gluck conclude:

In sum, Trump is unprecedented in the modern era for (i) the number and high percentage of self-serving pardons, and (ii) his stinginess in issuing pardons, at least thus far. Quite a feat.

Again, however, this does not make the pardons any less valid or his use of the power any less constitutional. It is gross, to be sure, but something can be both gross and lawful.

As for the justifications some have offered for the stone commutation, they ring hollow.  If the President or his allies truly believe that nonviolent, first-time offenders should not receive prison time, we would see evidence of that fact beyond this action, such as an order directing the Department of Justice to alter its sentencing recommendations accordingly, or proposals to revise the federal sentencing guidelines. I am not holding my breath.