The presidential pardon power is once again in the news and is likely to remain a subject of public debate for some time. Criticism of the pardon power—and of its misuse—has been bipartisan for as long as I can remember. The difference is usually not whether the power is being abused, but rather which party is accused of abusing it and which party is condemning that abuse.
Yet I suspect that most Americans, regardless of political affiliation, agree that presidents issuing pardons to family members, close associates, political allies, or potential co-conspirators as they leave office is unseemly and damaging to public trust. I am probably more critical of the pardon power than most. For example, I do not share the common view that pardoning Nixon was beneficial for the country; I believe it was a mistake. Even so, I am surprised that I cannot recall a significant political movement or major elected official seriously advocating for meaningful pardon reform.
In my view, reform is necessary because the pardon power is extraordinarily broad and largely unchecked. Such a concentration of authority naturally invites abuse, and history demonstrates that abuse does occur. By "abuse," I mean the use of pardons to protect family members, friends, political allies, or colleagues—and, in some cases, to shield a president's own interests or those of their party.
End-of-term pardons are particularly troubling. Pardons issued in the final days or even final hours of a presidency often create the appearance that the president wishes to avoid political accountability for the decision. Whether or not that perception is justified, it undermines public confidence in the legitimacy of the pardon process.
There is also the unresolved question of so-called "pocket pardons"—pardons issued secretly and revealed only if needed at a later date. While it is unclear whether such pardons would withstand legal scrutiny, the Constitution or federal law should make clear that a pardon must be publicly issued and documented to be valid.
I recognize that meaningful reform would likely require a constitutional amendment, although modern Supreme Court jurisprudence often makes constitutional predictions uncertain. Nevertheless, I have attempted to draft a possible Pardon Reform Amendment.
My proposal would grant the House of Representatives a check on pardons. I chose the House rather than the Senate for several reasons. First, the Senate already possesses substantial constitutional powers, including the confirmation of appointments, and there is little reason to expand its authority further, while several of the House's original powers (declare war, start budget resolutions) have turned out to be meaningless. Second, I worry that a Senate review process could become entangled in procedural obstruction and partisan maneuvering. Third, the House is designed to be closer to the people, which is appropriate given that the pardon power ultimately exists to serve the public interest. Finally, because House members face election more frequently, they have stronger incentives to avoid participating in a cover-up or defending an unpopular abuse of the pardon power.
I also considered including a provision stating that acceptance of a pardon constitutes an admission of guilt. However, I ultimately rejected that idea. Some individuals may seek or accept a pardon despite sincerely believing themselves innocent, particularly when a pardon is the only practical means of avoiding prolonged legal or political consequences. A president should remain free to make a pardon conditional upon an admission of guilt, but such a requirement should not automatically apply to every pardon.
Indeed, it may be worth considering whether the current pardon power should be divided into separate categories. One type—a "clemency pardon"—could carry an admission of guilt and serve the traditional purpose of forgiving an acknowledged offense. Another type—an "innocence pardon"—could provide relief without requiring such an admission, recognizing that not all pardons serve the same purpose.
Regardless, here is my proposal
1. A pardon must be submitted by the President to the Speaker of the House in order to be valid.
2. No current President, Acting-President or Vice-President may receive a pardon. A former President, Acting-President or Vice-President can only be pardoned by Congress following a majority vote in the House and a 2/3rds vote in the Senate.
3. No one who currently holds a presidentially-appointed office, or who has held one under the issuing president, may receive a pardon without 2/3rds approval of the House.
4. No President may issue a pardon to their spouse, children, siblings, parents or other close family members as defined by Congress, without 2/3rds approval of the House.
5. Pardons submitted to the Speaker in the last three months of a presidential term must be consented to by a majority of the House during that presidential term.
6. Pardons for crimes where there has been no conviction must be consented to by a majority of the House during that presidential term.
7. Any pardon issued by a president that was not approved by the House may be rescinded, by a 2/3rds vote of the House for 2 years after it was issued.
The purpose of 1 is to explicitly outlaw "pocket pardons". 2 prevents a president from pardoning themselves. 2,3 and 4 raises the standards for presidents pardoning colleagues and family members. 5 raises the bar for last minute" pardons.
6 raises the bar for pardons that deny the people an investigation. Sometimes these pardons - like for Vietnam draft dodgers - don't need an investigation because we all know what there is to know; but in other cases an investigation and trial, or at least an admission of guilt, could lead to the truth, criminal charges against others and a sense of satisfaction of justice.
7 gives Congress the power to rescind a pardon that doesn't meet any of the above standards but is nonetheless unappealing to the American people.
