The dangers of an unchecked pardon power

Kim Wehle on pardon abuse and the urgency of reform

If Trump returns to the White House, expect the presidential pardon power to play a starring role.

Yes, he has promised to pardon the January 6th insurrectionists, but many expect that abuses will go much further. He is likely to use pardons to reward loyalists and political supporters. He is expected to dangle the promise of pardons to encourage henchmen to break the law to further his personal interests. He may even attempt to pardon himself. 

In truth, the pardon power is much more nuanced than Trump’s absolutist view. In a new book released this week, Pardon Power: How The Pardon System Works — And Why, legal and constitutional scholar Kim Wehle has written one of the most comprehensive works on the pardon power to date. 

We are excited to have her with us to discuss the historical context and contemporary challenges surrounding the presidential pardon.

Kim, let’s start at the beginning: why was the pardon power incorporated into the Constitution in the first place?

The pardon power is a holdover from England’s “divine right” of kings to unilaterally wield the power of the state. Although American democracy represents the rejection of an absolute monarchy, the founders included the pardon power in the Constitution without much debate. Proposals for requiring Senate approval or banning pardons for treason failed. The views of James Madison and Alexander Hamilton — that a broad pardon power is necessary to carry out mercy and justice — ultimately prevailed. 

When used legitimately, pardons and commutations can address injustices in the criminal justice system or soothe a fractured nation. But increasingly, Presidents use it to dole out favors to donors, cronies, family members, and possibly even criminal accomplices, with virtually no accountability.

Are there major differences between how early and modern presidents have wielded the pardon power? What are they?

One difference between early and modern pardons is the exponential increase in convictions and sharp decrease in pardons and commutations over time. In the early twentieth century, presidents read pardon applications personally. Now it’s done by a team of lawyers at the Justice Department, and Presidents can ignore their recommendations. 

In 1900, Presidents granted nearly 50% of clemency requests; Trump granted under 2%. And since President George W. Bush, Presidents have increasingly used pardons for personal or political reasons — and in Trump’s case, even to silence incriminating witnesses, as many believe he did with Roger Stone and Paul Manafort. This kind of abusive power has no place in a legitimate democracy.

A common assumption today is that the pardon power is more or less unlimited. Is that true? 

The pardon power is not unlimited, but there are very few constraints. 

Under the text of the Constitution, presidents can only pardon federal crimes and they can’t pardon impeachments. But despite the mythology around an “absolute” pardon power, the Supreme Court has imposed other restraints. No pardons are allowed for crimes that have not been committed, for example, and presidents can’t force recipients to accept pardons or require the federal treasury to reimburse defendants who paid criminal penalties. Other parts of the Constitution — like the 5th Amendment’s ban on self-incrimination and Congress’s power of the purse — therefore operate to constrain the pardon power. 

Like much of the Constitution, the pardon power text is short. The Supreme Court could recognize more reasonable limits — like banning pardons in exchange for bribes or to obstruct justice — if it wanted to.

What do you see as the power’s most glaring vulnerabilities today, especially in the hands of an authoritarian president?

The most serious problem with the pardon is the lack of checks and balances to prevent abuse, a problem made worse by the Supreme Court’s decision to manufacture criminal immunity for presidents. Presidents can now commit crimes using the massive power of the office and simply pardon people who help him. Although some might call this scenario too far-fetched to worry about, the founding generation fought a revolution to get rid of an abusive monarchy and aimed to stave off another one. 

Routine pardons hardly operate as a merciful safety valve for wrongful convictions and sentencing these days, either — the pardon system has been captured by the wealthy and well-connected who flood presidents for favors in the waning days of an administration. That smacks of corruption, not mercy. 

In Trump v. U.S., the Supreme Court appears to have placed presidential power at even further remove from checks and balances. How might the ruling impact the future of the pardon power?

Trump v. U.S. allows presidents to commit crimes with impunity if done through “official acts.” Shooting a political rival with a personal handgun could be prosecuted. Doing it through Seal Team 6 is now protected. 

But the exercise of official power involves lots of other people within the president’s chain of command. To get those folks to follow an order that’s criminal, the president would have to dangle the prospect of pardons and later grant them. SCOTUS’s majority opinion identified the pardon power as “core” and therefore above the criminal law, so this combination of presidential crimes-plus-pardons would be toxic in the wrong hands.

Now more than ever, there needs to be some accountability for corrupt pardons. As Madison said, “if men were angels, no government would be necessary.”

You’re painting a pretty bleak picture, understandably. Is there room for hope? How could we check this power so it serves its intended purpose?

The bleakness around presidential power these days has meant that more and more Americans are waking up and becoming educated about the law, the Constitution, and democracy. This is extremely important to the survival of liberty, and it’s why my book titles all include the words, “and Why.”

If you understand the “why” behind the law you can understand “what” to do about it. Already, a constitutional amendment has been introduced to override the immunity decision and ban self-pardons. Restrictions on pardoning family and advisors have also been proposed. I suggest numerous other reforms in the book. But ultimately, it’s up to voters to make it clear to elected officials that the pardon power must be checked so it can operate in service of its original purpose.

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Thank you, Kim, for sharing your insights and expertise. 

For more like this, make sure you follow her excellent substack Simple Politics.