The Volokh Conspiracy

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Volokh Conspiracy

The Presidential Pardon Power


Over at Lawfare, I have a new post out suggesting that it is time to think about a constitutional amendment restricting the presidential pardon power. As in most things, President Donald Trump is particularly brazen and corrupt in how he uses the pardon power, but he is not unique in abusing one of the few unchecked powers that presidents possess.

The federal constitution is an outlier in how it structures the pardon power. The state constitutions reflect how the American people have learned from their experience with the experiment of republican government, and the state constitutions offer ready-made models for how the pardon power might be reformed.

Here's a taste from the post:

We have seen a train of abuses of the pardon power. Future such abuses could be remedied through a bipartisan constitutional amendment. It is a straightforward matter to make it explicit that a president cannot pardon himself, and it should not be hard to take pardons of immediate family members off the table as well. It should also not be difficult to require that pardons be issued only after conviction, or that pardons cannot be issued during the lame-duck period after a presidential election and before a president-elect has been inaugurated. It is possible to entrench into the constitutional text a process for considering pardons, so that presidents in the future cannot bypass the Department of Justice and issue pardons based on personal appeals by friends, family and television news hosts. It would be possible to require others to sign off on the pardon, whether existing members of the president's Cabinet or a new body like a pardon and parole board. It would be possible to make pardons conditional on a congressional vote, perhaps comparable to the vote to override a presidential veto of legislation. If Congress and then 38 states so decided, it would even be possible to give Speaker Pelosi the power she wrongly asserts that she already has and allow Congress to subject the pardon power to statutory regulation.

Read the whole thing here.