A unilateral executive power - the president’s ability to pardon

The U.S. Constitution, as every American high school student should know, created a government of checks and balances. Almost all actions taken by any of the three branches – executive, legislative and judicial – are subject to some confirmation or alteration or extinction by at least one of the others.

The President can veto an act of Congress, and Congress can override the veto. Major appointments by the President require confirmation by the Senate. The Supreme Court can declare congressional actions unconstitutional, and Congress can amend those laws to satisfy the judicial condemnation. You can no doubt think of other examples.

But there’s one power that’s unique in the Constitution – a unilateral executive power that neither Congress nor the courts can alter or reverse. It’s the President’s power to pardon.

The Constitution states clearly that the President “shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” No provision for overriding a pardon; it’s the same ancient power held by European royalty.

In fact, the presidential pardon power granted by the Constitution originated centuries ago in England, where it was known as the “prerogative of mercy.” King Ine of Wessex (not a household name) first employed it in the seventh century, and it was introduced as a concept at the 1787 American Constitutional Convention by none other than Alexander Hamilton.

There the delegates debated whether the Senate should have the power to approve or disapprove presidential pardons. They also debated whether treason should be excluded from pardonable offenses. But in the end, they granted the President an almost unlimited power to pardon anyone he or she wished, for any reason.

The “almost” encompasses three limitations: first, a crime must be involved for a pardon to be issued; second, a pardon can be employed only for federal crimes; and third, a President has no power to pardon in cases of impeachment.

There are four types of clemency under the pardon power. A “pardon” ends any punishment and restores the criminal’s civil liberties. “Amnesty” is a pardon extended to a class of persons. “Commutation” reduces a court’s sentence. And a “reprieve” delays a sentence. All four types are beyond the reach of the courts or Congress.

President George Washington issued the first presidential pardon in 1795 when he declared amnesty for Pennsylvania residents involved in the Whiskey Rebellion. President Abraham Lincoln employed clemency to promote Confederate Army desertions. And President Andrew Johnson pardoned former Confederate President Jefferson Davis, maybe the most controversial pardon in American history.

Possibly the most famous modern instance was when President Gerald Ford pardoned former President Richard Nixon, an act that likely cost Ford the election in 1976.

Does a President possess the power to self-pardon? Legal experts differ on that question. No one has tried it – yet.

Back to the Constitutional Convention: a primary reason the delegates decided to grant the President almost unlimited power to pardon was that if the President pardoned cronies or for other unsavory reasons, Congress would subject the President to impeachment. Back then the Electoral College comprised powerful men selected by the state legislatures, who were thought to be honorable political leaders who would select a President with upright virtue. The Constitution assumed the same from members of Congress.

How might the Framers view that rationale if they were around today?

No President has ever been impeached for shameful use of the pardon power, despite some brazen instances of its employment.

President Bill Clinton presented several occasions on which Congress might have punished him for misuse of the power. He pardoned major tax evader Marc Rich, who had fled to Switzerland during his prosecution and who had made large donations to the Clinton library and Hillary Clinton’s Senate campaign; and Susan McDougal, who served a sentence for contempt for refusing to testify about Clinton’s role in the Whitewater scandal; and Clinton’s own brother Roger Clinton, who served a sentence for drug charges.

President Donald Trump pardoned Arizona sheriff Joe Arpaio, who ignored a federal judge’s demands that he desist from violating laws governing treatment of Latino immigrants. He pardoned chief political strategist Steve Bannon, who was charged with duping thousands of border wall financial contributors. 

Trump pardoned five of the eight people who pleaded guilty or were convicted of crimes as a result of special counsel Robert Mueller’s investigation into Russian involvement in the 2016 election, including Trump’s former campaign chairman Paul Manafort, former national security adviser Michael Flynn, and former political adviser Roger Stone. 

And he pardoned Charles Kushner, father of his son-in-law Jared. Charles Kushner had pleaded guilty to tax evasion and making illegal campaign donations. He had hired a prostitute to seduce a brother-in-law, videotaped the tryst, and sent the tape to his sister to try to intimidate her from testifying before a grand jury.

Just the other day Trump said that if he were reelected, he would pardon hundreds of the perpetrators of the assault on the U.S. Capitol on January 6, 2021.

The unlimited pardon power allows a President, with the stroke of a pen, to undo years of painstaking case investigation by dozens of justice department personnel, careful preparation by prosecuting attorneys, and thoughtful judicial opinions by outstanding judges in cases when someone acted outrageously and well beyond the limits of the law, even involving outright murder.

It’s difficult to believe that’s what the Framers had in mind that sweltering 1787 summer in Philadelphia. To amend the Constitution to prevent such travesties is not an easy task. But it’s certainly worth a try. 

Justice is not served by presidents who wield an unjust pardon pen.