Donald Trump, too, will pass, and we will find ourselves in a post-Trump world faced with the question: What can we do to prevent this from ever happening again? What changes must be made – in the Presidency, the other branches of government, the institutions of American society – to make sure this unending stream of abuses, corruption, and betrayal never happens again?
There is no shortage of elements in governance and society that will have to be changed. Guardrails on presidential economic and warmaking powers; voting rights reform and an end to gerrymandering; meaningful bribery laws and robust enforcement; safeguarding the Department of Justice and the courts from presidential manipulation and lawfare against opponent and critics; establishment of a genuine healthcare for all system; and more. But for now, in the first of what I hope will be a series of diaries, let’s address presidential pardon powers. This is, after all, perhaps the single area in U.S. governance that gives the president unchecked discretion. And Trump has constantly abused that discretion in office: pardons of the January 6 rioters/insurrectionists, who tried to overturn a U.S. election, many of whom physically attacked and injured police officers; pardons of crypto kings, shady financiers, and Republican donors who shoveled cash into Trump’s many ventures; pardons of Republican officials convicted of corruption; and more.
Legislation passed by Congress to regulate pardons may fail constitutional challenges because of the broad latitude granted to the president by the U.S. constitution, so meaningful pardon reform may in fact require a constitutional amendment. And yet, reform of the pardon power may be an area where Democrats and Republicans find genuine common ground. Republicans have long professed outrage at pardons made by Democratic presidents, from Biden’s preemptive pardon of his son back to Clinton’s Marc Rich pardon (and probably before). This opens up the possibility of both Democratic and GOP representatives and senators joining together for the necessary two-thirds vote in both the House and Senate, and the necessary approval by three-fourths (38) of the 50 states, because multiple GOP-controlled states would have to approve any amendment.
So: assuming bipartisan political will is found, what specific restrictions on the pardon power should be instituted? My thoughts on some possibilities are below but I’d really like to open up some discussion about this, to give voice to as many ideas as possible.
No preemptive pardons: Ban any purported pardon for uncharged offenses; pardons can only apply to actual criminal charges or convictions. Preemptive pardons are a terrible idea. A president could immunize as many of his top officials as he wished for any criminal wrongdoing in office, simply by issuing such pardons at the end of his term in advance of any possible charges. Ford’s full pardon of Nixon, before any criminal charges had officially been made against him, is a prime example of this. I believe Ford’s decision was a disaster for the nation, ushering in an era of implicit Presidential immunity for crimes in office.
No pardons for individuals or groups that have donated to a president’s political campaign OR to projects, activities, or organizations affiliated with the president (such as presidential libraries, Trump’s ballroom squatting atop the ruins of the East Wing, etc.). This is an obvious conflict of interest, and is really indistinguishable from outright bribery.
No pardons for family members. Again, there is an obvious conflict of interest here. However, this would also block presidents from shielding family members against politically motivated prosecution by a subsequent administration. Who can doubt that Trump’s DOJ would vindictively purse Hunter Biden, if not for Joe Biden’s pardon?
Pardons must be reviewed and approved by Congress. This would make sure that proposed pardons are seen and debated publicly before becoming official. A supermajority could be specified, to ensure that approval of a pardon is bipartisan. Given the paralysis and hyper-partisanship in Congress today, however, this may not be workable.
Pardons must be reviewed and approved by a panel of Federal judges. This would be an alternate means of ensuring review by another branch of government. The panel could be drawn randomly from current, senior, or retired judges to make ideological balance more likely.
What are your thoughts on these possibilities? What are some other possible pardon reforms?
