The President’s pardon power has received renewed attention and controversy during the Trump Administration. Those interested in a useful survey of controversial presidential pardons from this administration and others, as well as an interesting proposal for reform, should check out a new article in the Hastings Constitutional Law Quarterly, “Should the Power of Presidential Pardon Be Revised?,” by my colleague Professor David Levine and co-author Dr. Budd Shenkin.
Professor Levine and Dr. Shenkin argue that the pardon power has always carried risks of abuse, as evidenced by many presidential pardons across American history that served to protect presidents and their friends or associates from embarrassing investigations. Salient examples include Ulysses Grant’s pardoning of colleagues involved in the “Whiskey Ring” scandal, Gerald Ford’s pardoning of Richard Nixon, and President George H.W. Bush’s pardoning of some Iran-Contra conspirators.
Professor Levine and Dr. Shenkin argue that risks of abuse are getting worse. They point to President Trump’s various controversial pardons, including those of Arizona Sherriff Joseph “Joe” Arpaio, right-wing pundit Dinesh D’Souza, and author Conrad Black. They also note his promises to pardon others, including federal employees who break laws to build Trump’s border wall, military officers who violate the laws of war, and even Trump himself if necessary to prevent prosecution for official acts.
After considering and rejecting various alternative solutions, Professor Levine and Dr. Shenkin propose an elegant remedy: The Constitution should be amended to require the Speaker of the House’s assent to any presidential pardon. This solution, they argue, would introduce a valuable check on abusive pardons without bogging the pardon process down in bureaucratic rigmarole or imposing conditions on pardons that may prove difficult to enforce. They point out that similar constraints have worked well in some state constitutions.
The proposal is well worth considering. At present, the pardon power gives the president an absolute prerogative that sits uneasily with modern notions of bureaucratic regularity and the rule of law. Pardons are a lightning strike, dispensed from the ruler as a matter of grace with no burden of justification or requirement of consistency across other cases.
Pardons also implicate a pervasive problem of constitutional law and separation of powers: Who will guard the guardians? The pardon places a check on Congress’s power to enact criminal laws, but the pardon power itself is then unchecked (except perhaps by other retaliatory actions on Congress’s part). Imposing a further check, however, risks abuse on the part of the one doing the checking, which could warrant still further checks—and on ad infinitum, with paralyzing effects on governance.
Professor Levine and Dr. Shenkin make a strong case that one further check on the pardon power is warranted in this moment, when political constraints on self-serving presidential pardons seem to have weakened. They recognize that the check they propose could create risks of gamesmanship and hold-ups: a hostile speaker might reject pardons for political reasons or bargain with the president for other pardons in exchange. Professor Levine and Dr. Shenkin make the case that even with these costs the new equilibrium would be preferable to the current one. Anyone interested in the health of the nation should consider their points carefully.