As the new year begins, former President Donald Trump likely has a lot on his mind. He is the frontrunner for the Republican nomination for the Oval Office and faces federal and state criminal prosecutions related to efforts to overturn the 2020 election. Among the many legal and policy issues that a second Trump presidency raises is the pardon power, which he might again abuse to benefit friends, family, or political allies, including numerous January 6 defendants.
If the past is prologue, Trump’s prior term in the White House can indicate whom he might pardon – and for what crimes – if he wins re-election. As discussed below, Trump ended his presidency by granting a number of ethically and morally questionable pardons. But Congress can impose consequences for these abuses by increasing oversight of the pardon power, imposing transparency and reporting requirements, and expanding existing laws that criminalize bribery and public corruption.
Trump’s Record On Pardons
While it is customary for an outgoing president to issue more pardons at the end of a presidency, nearly all of Trump’s pardons and commutations were issued in the final months before he left office – a total of 237 people. On his final day, Trump pardoned 74 people and commuted the sentences of 70 others. While Trump’s overall number of pardons was small compared to other presidents, some of his high-profile decisions raise questions about the influence of personal connections and undermine the rule of law. Among others, Trump pardoned Salomon Melgen, who was convicted of defrauding Medicare of approximately $73 million; Steve Bannon, Trump’s former political consigliere who had been indicted for fraud in connection with a non-profit he ostensibly set up to raise money for the border wall; and Albert J. Pirro, Jr., who was convicted on conspiracy and tax evasion charges and is the ex-husband of Fox News host Jeanine Pirro.
These pardons followed others granted by Trump to his allies and other persons: public officials and campaign advisors caught up in the Russia investigation, including former National Security Adviser Michael Flynn and George Papadopoulus; disgraced former Members of Congress, such as Duncan Hunter, who pleaded guilty to misuse of campaign funds, and Chris Collins, who was imprisoned for securities fraud; and Roger Stone, Paul Manafort, and Charles Kushner, Jared Kushner’s father.
The manner in which Trump issued his pardons was also unusual. Rather than working through the federal administrative apparatus governing the pardon power (including the Department of Justice’s Office of the Pardon Attorney), Trump granted pardons on the basis of celebrity and without intergovernmental consultation, including to individuals like Joe Arpaio, Dinesh D’Souza, and Lewis “Scooter” Libby. All three were perceived symbols of the “deep state” unfairly persecuting conservative icons: Arpaio, an Arizona sheriff known for his anti-immigrant views, was convicted for criminal contempt of court; D’Souza pleaded guilty to illegal campaign donations; and Libby, former Vice President Dick Cheney’s aide, was found guilty of four felonies relating to the outing of CIA agent Valerie Plame. Even individuals serving long sentences for nonviolent drug convictions who might have deserved a pardon, like Alice Marie Johnson, only received one if they had a celebrity benefactor like Kim Kardashian to lobby on their behalf.
Trump’s Future Pardons
While Trump contemplated the idea of a “self-pardon” at the end of his presidency, as many feared he might do, he did not ultimately go through with the idea. Nor did he pardon immediate family members. Still, he has not ruled out the possibility should he win re-election. Trump is facing multiple criminal prosecutions and civil lawsuits and investigations. Many, if not all, of these cases will be ongoing, at least until the 2024 election. If elected, Trump would be able to use his pardon power to shield himself, his family, and his associates from federal prosecution or punishment.
There are also many other ways Trump could use the pardon process to influence or interfere with the judicial process. It’s no stretch to assume that Trump would dangle the promise of pardons before the election to his allies, to encourage them to commit election fraud by manipulating election results or intimidating election officials. Trump is well known for using threats and enticements to encourage or fend off testimony in ongoing cases, leading judges to issue several gag orders against him. If Trump were to muse publicly over social media or in interviews about the need to fight election fraud through vigilante action, and that resulted in violence or aggression at the polls, Trump could pardon people who responded to his prompt.
This is not an unfounded prediction. Trump has already said that he would pardon “a large portion” of those convicted for participating in the January 6 attack on the U.S. Capitol. More than 1000 people have been federally charged with a variety of crimes, ranging from assaulting officers and destruction of property to obstructing an official proceeding and seditious conspiracy. There have already been close to 600 plea agreements and 100 trials. The monetary cost and time devoted to these prosecutions has been significant. The Government Accountability Office estimates the response has required over $2.7 billion in federal resources.
While it’s possible this form of election interference might raise the risk of Trump’s being accused once again of inciting violence or insurrection, which could in turn expose him to criminal or civil liability, as well as impeachment and removal from office, those aren’t risks Trump is likely to take very seriously – and with good reason. Trump would control the Justice Department, which he has already tried to manipulate, and two impeachments did little to change his behavior. However, there are practical, bipartisan steps that Congress can take to reform the pardon process.
Reforming the Pardon Process Through Congressional Action
The number and beneficiaries of Trump’s previous pardons – coupled with the strong possibility he would again wield the pardon power abusively in a second term – demonstrate the need for reform. One path to reform could be congressional investigation and legislation.
Pardon reform is ripe for bipartisan action. After all, prior presidents also used the pardon power in controversial ways. For example, just before leaving office in 1992, George H.W. Bush granted pardons to former Secretary of Defense Caspar Weinberger and five others who had been convicted for their roles in the Iran-Contra scandal, leading to widespread outrage and calls for hearings. And Bill Clinton was roundly condemned for his last-day pardons, including for Marc Rich, who had fled the United States following an indictment for fraud and tax evasion. Bad enough that Rich was a fugitive, but he was also the former husband of Denise Rich, a major donor to Clinton’s foundation and to Hillary Clinton’s Senate campaign. There was such a bipartisan outcry that Congress initiated investigations, as did the United States Attorney in Manhattan.
Members of Congress have introduced several bills designed to reform and constrain the pardon power. One bill, Abuse of the Pardon Prevention Act, would require the Justice Department and the president to provide Congress materials pertaining to the pardoned individual’s prosecution and pardon. The bribery statute prohibits corruptly offering or promising anything of value to a witness with the intent to influence or prevent that witness’s testimony The bill would clarify that the law applies to the president and vice president, that it is an “official act” under the statute to grant a pardon or commutation, and that such a grant is a “thing of value” that would trigger the law’s application. Another provision would “declare presidential self-pardons invalid.”
There is reason to believe this legislation would withstand constitutional challenges. With respect to the bribery provisions, it is widely accepted that Congress may impose criminal penalties on a presidential pardon issued to bribe a recipient. The Justice Department has issued two opinions consistent with this understanding. As to the proposed provision banning self-pardons, in 1974, the Office of Legal Counsel (OLC) issued an opinion that such a pardon was illegitimate (more on that below). And, in October 1995, a more OLC recent opinion stated that, “Application of [the bribery statute, 18 U.S.C. § 201, to the president] raises no separation of powers question, let alone a serious one.”
Since that 1974 opinion on self-pardons has never been tested, we cannot know exactly how a lower federal court or the Supreme Court itself might approach the question, although it certainly has the merit of falling on the side of common sense, the normal usage of the word “to grant,” and the historical understanding that the use of the pardon was a matter of grace by the executive, as well as constitutional text, structure and original meaning.
Another proposed bill would require the president to publish the issue-date, recipient, and full text of each pardon or reprieve. Such legislation would bring greater transparency and public attention to, and potential condemnation of, ill-considered pardons. As a corollary, in courts, these kinds of relationships typically warrant recusal by a judge.
Congress could also pass a resolution expressly condemning self-pardons. As precedent, at least 22 “sense of Congress” resolutions, in which Congress expresses its strong opinion about an area of concern, have been introduced in Congress to disapprove, censure, or condemn a president’s actions, with a 1912 resolution condemning William Howard Taft being the latest that was adopted.
Another area where Congress can help police the pardon power is through its oversight and investigative powers. It should use its subpoena powers to obtain documents and testimony from Justice Department and White House staff regarding both trends and individual pardons. House or Senate hearings focused on Trump’s most egregious pardons would raise public awareness of his abuse of the pardon process, even if not criminal, and provide support for deterrence of pardon abuses in the future. While it’s likely that Trump would pay little heed, and may even revel in the attention, future presidents might be more susceptible to public pressure and shaming.
Limits on Presidential Self-Pardons
Obviously, the most significant reform – and the most challenging to accomplish – would come through a constitutional amendment. One proposal, reintroduced in May 2023 by Representative Steve Cohen (D-TN), would prohibit self-pardons, pardons for family and close advisors, pardons for actions personally benefiting the president, pardons for crimes committed with the president, or pardons granted for a “corrupt purpose.”
Even without congressional action, there are several well-recognized limits on the exercise of the constitutional pardon power: (1) it only covers federal crimes, (2) it may not be used to obstruct justice, and (3) a self-pardon is constitutionally suspect.
The first point is the most obvious: any convictions in state criminal prosecutions of Trump, his family, and/or associates cannot be presidentially pardoned. Nor can he pardon his way out of any federal or state civil liability. As for federal crimes, however, the presidential pardon power is nearly absolute and certainly bars successive federal prosecution of the offenses covered by the pardon. In Ex parte Garland, the Supreme Court held that the presidential pardon power is “unlimited except in cases of impeachment” and that it “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.”
When it comes to questions of obstructive pardons, which are pardons used to interfere with an ongoing investigation, however, this is the start of the inquiry, not the end. Although a president can issue an obstructive pardon, its issuance might create more legal jeopardy for him or her, not less.
If the president issues an obstructive pardon, it could constitute an impeachable abuse of power, for which there is clear precedent in the articles of impeachment drafted by the House Judiciary Committee against Richard Nixon. The first count in the Nixon articles of impeachment charged him with “using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry [into the Watergate hotel].”
The specific allegations in support of this article of impeachment were that Nixon intended to “interfere with the conduct of investigations” being led at that time by the Justice Department, the FBI, the Watergate Special Prosecutor, and Congressional Committees and that Nixon endeavored “to cause prospective defendants, and individuals duly tried and convicted, to expect favored treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.” Indeed, Nixon repeatedly discussed clemency for one of the officials who was indicted for his role in the conspiracy. This is unquestionable congressional and constitutional precedent that an obstructive pardon is an impeachable offense.
In addition to impeachment, an obstructive pardon could also expose a president to the risk of criminal process for obstruction of justice, witness tampering, and, possibly, even bribery, for which he or she could be indicted after leaving office (and possibly even before). A specific provision of federal law, 18 U.S.C. § 201(b)(4), explains the legal interaction between bribery and witness tampering. Section 201(b)(4) prohibits corruptly offering or promising anything of value to a witness with the intent to influence or prevent that witness’s testimony or sharing of evidence. The statute also prohibits a potential witness from demanding, seeking, receiving, accepting, or agreeing to accept anything of value in return for shaping the testimony or for not testifying at all.
Although charges under the witness provisions of the federal bribery statute for a corruptly-motivated pardon would be novel, that nonetheless closely tracks the statute: the pardon would amount to “a thing of value” that the president might be “giving” to a witness in exchange for influence over that witness or witness’s silence.
Indeed, in the case of the pardon granted by Clinton to Rich, the Justice Department opened a criminal inquiry in 2001 and then-Senator and subsequent Attorney General Jeff Sessions said that the investigation was warranted: “From what I’ve seen, based on the law of bribery in the United States, if a person takes a thing of value for himself or for another person that influences their decision in a matter of their official capacity, then that could be a criminal offense.”
Courts have been quite clear in analogous contexts that the term “anything of value” should be interpreted broadly and can include not just money, goods and services but also intangible considerations, such as promises, information, and poll results. Nonetheless, new legislation should clarify that a pardon is a thing of value under the bribery laws to put to rest any lingering questions.
Finally, self-pardons remain constitutionally suspect even if Congress doesn’t enact new specific legislation addressing them.. Our pardon power traces its origins to the royal prerogative of mercy exercised by a British monarch, whereby he or she would sit as a “super-judge,” evaluating another’s conduct to see if it deserved clemency. Scholars who have studied the history of the royal pardon have been unable to find any precedent for a sovereign pardoning themselves. Nonetheless, past presidents, most notably Nixon, have asked if they could use the pardon power to save themselves. Indeed, in the waning hours of his presidency Nixon’s Justice Department issued a memorandum addressing the propriety and constitutionality of a self-pardon.
The Nixon OLC memo evaluated the pardon power within a rule-of-law framework. Recognizing the “fundamental rule that no one may be a judge in his own case,” the memo unequivocally concludes that “the President cannot pardon himself.” Nixon seemingly accepted this conclusion, and the OLC’s analysis may have perhaps played a role in Gerald Ford’s decision to pardon his former boss.
There is no reason to think the Justice Department’s 1974 opinion on the pardon power was incorrect. To the contrary, there is every reason to think it was and remains the correct reading of the Constitution. Nonetheless, it would be useful for Congress to settle any remaining question over the correctness of this understanding.
Pardons and the Rule of Law
The current imperative to address the pardon power is not just because Trump might upend domestic politics in a consequential way but also in what it would represent to the world. A leader who uses the justice system to persecute enemies and free allies via abusive prosecutions and pardons could not be a clearer sign of an autocracy, or at least of a democracy in free-fall. If the United States were seen this way by other nations, it would damage international relationships with other democracies, perhaps irreparably.
The founders recognized that the pardon power could fall into the hands of someone with questionable character and motives. In fact, in 1788, at the Virginia Ratifying Convention, George Mason raised this possibility when he said the president:
ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted.
James Madison, immediately understanding the force of Mason’s objections, replied that he too recognized that there was danger to giving the president the pardon power. But, if the pardon power were to be used improperly and fall into unscrupulous hands, the Constitution had a remedy – impeachment. Over the course of several decades, and three presidents, the nation has unfortunately learned that impeachment is not a check on presidential impunity.
Congress has the tools to address parts of this problem, at least when it comes to transparency and accountability and evading them through a pardon. It should act now because it might not get a second chance.