Testifying before House Judiciary Committee on the Pardon Power

"Constitutional Means to Prevent Abuse of the Clemency Power."


Today, I will be testifying before the House Judiciary Committee, Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The topic is "Constitutional Means to Prevent Abuse of the Clemency Power." Here is the live-stream, which will begin at 9:00 AM:

And here are my prepared statements, which will run about five minutes:

Chairman Cohen, Ranking Member Johnson, thank you for inviting me to testify. I am a constitutional law professor at the South Texas College of Law Houston.

People often think that the courts have a monopoly on interpreting the Constitution. They don't. As we speak, the House Managers are trying President Trump for violating the Constitution. And here, we will discuss the "constitutional means to prevent abuse of the clemency power."

In my brief opening remarks, I'd like to make three primary points. First, I will discuss an important purpose of the pardon power. Second, I will consider proposed statutory regulations of the pardon power. And third, I will talk about H.R. 4, a proposed constitutional amendment that would limit presidential clemency.

Today, people often think of the pardon power as a form of error correction. For example, the courts made an error by imposing an unjust sentence. Or prosecutors pursued an unjust charge. But as originally understood, clemency could serve a greater purpose. In Federalist No. 74, Alexander Hamilton identified the "principal argument" for the pardon power: "restor[ing] the tranquillity of the commonwealth." Pardons do not merely help individuals. Presidents can issue pardons to advance broader public policies. Some of the most famous pardons in American history served this purpose. President Washington pardoned participants in the Whiskey Rebellion. President Jefferson pardoned those convicted under the Sedition Act. After the Civil War, President Andrew Johnson pardoned former Confederates. And President Ford pardoned people who evaded the draft. Each of these decisions was unpopular in some quarters. But, in each case, the President used his pardon power to pursue the common good, as he saw it. 

This history brings me to my second point. Last summer, this Committee marked up the Abuse of Pardon Prevention Act. I criticized this bill in a post I co-authored for Lawfare with my colleague, Seth Barrett Tillman, Lecturer at the Maynooth University Department of Law in Ireland. I will submit that post for the record. In short, this proposed bill would alter the presidency such that he would now second-guess his official actions for fear of prosecution. Congress should not empower Federal prosecutors, through the power of the criminal process, to dictate what the public interest is.

Third, this committee is considering H.R. 4, a proposed constitutional amendment that would limit whom the President can pardon. I oppose this amendment. It attempts to constitutionalize a single conception of the public interest: what is, and is not a proper pardon. The public interest is always contestable because no one has the institutional knowledge to declare a monopoly on what is in the common good. The President should be able to make important decisions with vigor, independence, and dispatch. The President should have the greatest latitude to issue pardons, precisely because the President should have the greatest latitude to pursue what he sees as the common good. Limiting the President's power to issue pardons will limit the President's power to promote what Hamilton referred to as "the tranquility of the commonwealth." This amendment should not be adopted.

Thank you for your time, and I would be happy to answer any of your questions.

Update: You can watch the condensed version of my testimony here:

NEXT: Who's Afraid of Josh Hawley?

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  2. I think Prof. Blackman is right.

    The pardon kerfuffle reminds me of what happened when the crack-powder cocaine sentencing disparity first became a political issue: the first reaction of politicians was to try to LENGTHEN the setences for powder cocaine.

    The pardon power is one of the only things that the carceral state does not have control over. They hate this and look for any excuse to weaken it, for much the same reason that Potter hated the Building and Loan in "It's a Wonderful Life". No matter how much you may dislike how it has been wielded by one or more Presidents, it's incredibly important to have a completely unchecked power that the DOJ or a "law and order" judge or a legislature can't touch. Not only because of error correction, as Prof. Blackman notes, but also because of the principle of the thing. It is an assurance that our liberties are not completely in the hands of ambitious, bloodthirsty prosecutors (who make up much of the judicial branch as well).

  3. As we speak, the House Managers are trying President Trump for violating the Constitution.

    That will be news to the House Judiciary Committee.

  4. "And President Ford pardoned people who evaded the draft."

    He did? I thought that was Carter.

    1. Hilarious. What a self-inflicted wound. How can he expect people to take him seriously when he lacks even basic factual correctness in an opening statement?

      1. And Ford pardoned Nixon for the tranquility of the nation reason.

    2. Ford granted some of them "conditional amnesty," Carter pardoned all of them.

    3. Vainly did I search for H.R. 4, the alleged proposed constitutional amendment regarding the pardon power. I did however find H. J. Res. 4, the guts of which reads as follows:

      The President shall not have the power to grant pardons and reprieves to—
      (1) himself or herself;
      (2) any family member, up to a third degree relation, of the President, or a spouse thereof;
      (3) any current or former member of the President’s administration;
      (4) any person who worked on the President’s presidential campaign as a paid employee;
      (5) any person or entity for an offense that was motivated by a direct and significant personal or pecuniary interest of any of the foregoing persons; or
      (6) any person or entity for an offense that was at the direction of, or in coordination with, the President.
      Any pardon issued for a corrupt purpose shall be invalid.


      1. Supposing - hypothetically of course - that aggressive prosecutors target people in the President's circle - is the President to be divested of the means of defense?

        Are prosecutors to be permitted to continue litigating a case even after a pardon was granted by invoking this amendment (after all, to a prosecutor any thwarting of their will is for a "corrupt purpose")?

        1. Pardon is not supposed to be anyone's "means of defense". That's what the bill of rights is for.

  5. IMHO, the important corrections would be:

    1. Prohibit the president from using the pardon to hinder an investigation into his own affairs by pardoning witnesses who refuse a subpoena or who lie under oath, or by pardoning his own accomplices for crimes committed at his behest

    2. Prohibit the president from pardoning war crimes committed against other nations or their citizens (let him pardon civil-war crimes if he thinks it's appropriate, as Andrew Johnson did)

    3. This one is a little hard to prove in any individual case as it requires some insight into the president's feelings or motives which may not be clear: prohibit the use of a pardon as a weapon to further victimize a victim (or victims) of a crime, by denying them justice.

    4. Prohibit pardons for law-enforcement officers who abuse their power, especially when the abuse attacks or undermines the separation of powers. No more pardoning rogue cops or sheriffs who defy court orders to stop abusing their (the law-enforcement officers') power.

    1. Those are all terrible ideas.

      1. It's entirely possible for a criminal investigation by a runaway prosecutor to interfere with the Presidency. Indeed, Democrats claimed that's exactly what happened with Ken Starr.

      2. "War crimes" involves not only grunts but policymakers. There are important reasons not to turn political and policy disputes into criminal disputes. While in a perfect world we would try war criminal policymakers, it's certainly not something you want to hand to a political opposition party.

      3. All pardons are unpopular with victims. That's not a reason not to do them.

      4. What if a law enforcement officer is unjustly convicted, or overly harshly punished, or prosecuted as part of a political vendetta by a political rival?

      Don't mess with the pardon power. It's perfect the way it is.

      1. The only limitation I would consider placing on the President's authority to pardon and grant clemency would be that he can't do so in the last 3 months of his term. That's when Presidents pardon their cronies because then it can't affect the Presidential election.

        1. SMP,
          That's the only sort of pardon-power limitation I'd be likely to go along with. But I'd still allow these "late" pardons with the caveat that they could be overruled by a majority in, say, the Senate.

      2. I wouldn't do anything with it — the biggest problem with the pardon power is that it is underused, not overused — but if it were being tampered with already, I would make clear that the president cannot self-pardon.

        1. "the biggest problem with the pardon power is that it is underused, not overused"

          Totally agree.

      3. Dilan:

        1. Remember what the outcome of the Ken Starr impeachment was. No pardon needed. And should Bill Clinton really have been allowed to pardon Susan McDougal for refusing to answer questions from a grand jury-- without invoking the Fifth Amendment or giving any other legal grounds for her refusal?

        2. RE: "Important not to turn policy disputes into criminal disputes"

        By that reasoning, we should not have international criminal courts at all. You are saying exactly what Nicolae Ceaușescu might have said if he had been put on trial.

        3. I'm talking about a pardon which the president issues in order to further harm a victim, not just about a pardon which the victims don't like. As I said, it's hard to prove, if the president just keeps his mouth shut about why he's issuing the pardon. But if a president were to brag, openly and several times in front of many witnesses: "I don't like [name], so I'm pardoning the criminal who stole all his money!" Do you really think that pardon should stand?

        4. The way to address this-- malicious prosecution by a political rival or by a political rival of the president-- is not through the pardon! The pardon is capricious and unreliable. What if the president decides he doesn't like the victim of the malicious prosecution any more? If the victim were relying on the pardon for exoneration and justice, he wouldn't get any. The way to fix the problem of malicious prosecution is to strengthen legal protections against malicious prosecution. Weaken some of the prosecutor's protections from liability for his abuses, and reduce the demands required to prove malicious prosecution.

        1. By that reasoning, we should not have international criminal courts at all. You are saying exactly what Nicolae Ceaușescu might have said if he had been put on trial.

          ...and what many people did say right after they misrepresented the ICC's judgment on Palestine last week.

  6. The biggest restriction for pardons would solve just about every issue anyone has with them: Pardons cannot be issued from 2 weeks before a presidential election until the new president is inaugurated.

    If a person is worthy of a pardon on January 20th, they are worthy of a pardon on October 15th.

    And every single state should issue the same restriction on governors pardons to prevent another Kansas fiasco.

    1. I was going to suggest exactly this.

  7. I'm still celebrating the pardon of Jack Johnson. How can you not love a pardon for someone who can literally knock his opponent's front teeth out, so that they become embedded in the front of his glove and he has to brush them off? (And when I say "literally", I mean it literally.)


  8. I thought of the same thing!

    But.. actually it’s the white zone.

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