Should the Power of Presidential Pardon be Revised?

Abstract

Although the Administration of President Donald J. Trump has not succeeded in provoking much awe, it has certainly provided more than its share of shock, including the way it has brandished the power of the presidential pardon. President Trump has tested the limits of the power by hinting that he can pardon himself. He violated the standard Department of Justice procedures of screening pardon candidates by taking nakedly political steps to pardon Arizona Sheriff Joseph “Joe” Arpaio, who was convicted for felony contempt of court for failing to cease mistreatment of prisoners of color, and right-wing provocateur Dinesh D’Souza, who pled guilty to campaign finance violations. President Trump pardoned Conrad Black, a longtime friend and business partner, who was deported after serving a sentence for fraud, embezzlement, and obstruction of justice, but who had written a glowing book about Trump. In 2019, he flirted with pardoning war criminals on Memorial Day. He apparently offered to pardon aides and other federal employees who might break the law while fulfilling his quest to build a wall across the entire border with Mexico. Even more significantly, Trump has played a cagey game of self-protection by offering glimpses of pardons for witnesses who are “loyal” and not “rats” who cooperate with law enforcement. In the wake of this presidency, there will doubtless be a raft of reform measures. We believe that reform of the pardon power should be a top priority because this power goes to the very heart of a basic tenet of our government: everyone is equal before the law. Since that power sits squarely in the Constitution, and not merely in statutory law or custom, reform requires a constitutional amendment. Our specific proposal to provide a check on the pardon power is this: amend the United States Constitution to require that every presidential pardon have the co-signature of the Speaker of the House of Representatives to become effective. Constitutional amendments are notoriously challenging. Nonetheless, as we discuss below, we believe that our proposed amendment has a good chance of passage, both because there is likely no strong constituency whose power would be compromised by this change, and because extreme circumstances might warrant this change. Picture the situation, for instance, if President Trump should decide to pardon his convicted campaign chair, Paul Manafort, his indicted advisor, Roger Stone, his children, other associates, and even himself; we believe that the Country’s outrage would make anything possible.