The Volokh Conspiracy
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How To Ban Lame-Duck Pardons
A draft amendment to make pardons accountable to voters.
President Biden has pardoned his son Hunter for all federal crimes committed from 2014 through yesterday. That's not just for the crimes for which Hunter has already been charged, but for anything he did (or may have done) during the last ten years. Granting this pardon was something the President had pledged not to do in June, while he was still a candidate for reelection ("I abide by the jury decision. I will do that and I will not pardon him."). But, as NBC reports, "it was decided at the time that he would publicly say he would not pardon his son even though doing so remained on the table." And now that the election is over, Biden could issue the pardon without worrying that voters would punish him or Vice President Harris, who had replaced him on the ticket.
Presidents have the constitutional "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." There's nothing Congress can do about that. Giving someone a pardon power is hard to do without, because the chain of review for prosecutorial decisions has to stop somewhere. If the buck doesn't stop with the President, it'll stop with less-accountable prosecutors or courts.
But the President is only accountable to the electorate so long as he or his party are up for election. Once the election is over, there's no one for voters to punish. That's why Biden waited until after the election to pardon Hunter; why Trump did the same for Steve Bannon and Roger Stone; why Obama did the same when commuting the sentences of Chelsea Manning and the terrorist Oscar López Rivera. And, most notoriously, that's why Bill Clinton waited until his last full day in office to pardon the fugitive Marc Rich, who had fled to Switzerland to avoid prosecution and whose ex-wife donated $450,000 to the Clinton Library.
Some people argue that Presidents would be too stingy with pardons if the voters got to see them first. But that's what happens in a democracy: the people get to decide. If we don't think the pardon power should be reviewed by the public, then why lodge it with the President, rather than with judges or other unelected officials? A truly unreviewable pardon system would raise real dangers for a democracy, because it could be used to insulate attacks on the system from any punishment. But much the same thing happens when the President can simply wait the voters out.
Maybe the lame-duck period should be shorter; we've already amended the Constitution once to move up Inauguration Day. But it's hard to imagine that we'd provide no time at all for a transition, especially when California is still counting the votes. And it doesn't take very long to sign a piece of paper.
So the better solution is to ban, not lame-duck periods, but lame-duck pardons. Here's draft language that might do the trick:
The power to grant reprieves and pardons for offenses against the United States may not be exercised without a public proclamation of the same; nor may it be exercised from one month prior to the time of choosing the electors until the next presidential term begins, except to grant temporary reprieves extending no longer than the tenth day of such term.
Three important things about this draft. First, it bans secret pardons: the voters can't judge pardons that they don't know about. Second, it creates a "blackout period" in which the President can't issue pardons or commutations, starting one month before election day and lasting until the start of the next term. Whether the President is on the ballot or not, voters would have time to decide what they think of a pardon and whether to withhold their votes for the President's party. And third, it creates an exception for temporary reprieves, letting the current President postpone punishments (especially capital ones) and letting the newly elected President, or the same one if reelected, decide whether to make those reprieves permanent.
Mike Rappaport, who's discussed this issue before, notes that right now might be the right time for members of Congress to act. The issue is in the news now. President Biden isn't on the ballot anymore, and neither is Vice President Harris, so Democrats could endorse the amendment without facing any electoral penalty. And because the focus right now is on Biden, Republicans could endorse it as a criticism of the incumbent rather than of their own president-to-be.
If not now, when?
