The Corruption of the Pardon Power: What are the Limits?

Abstract

Although our government is said to be one of checks and balances, the President’s power “to Grant Reprieves and Pardons for Offenses against the United States” appears to be unlimited. In granting this power, the Framers deliberately cast structural safeguards aside. Nevertheless, the presidency of Donald Trump prompted a search for limits. The first part of this Article examines whether a President may pardon crimes that have not yet happened (or announce his intention do so), whether he may pardon himself, whether he may use pardons to obstruct justice or commit other crimes, whether criminal statutes should be construed not to apply to the President when they arguably limit the pardon power, whether the Take Care Clause limits the pardon power, whether pardons can deprive victims of due process, whether pardons ever violate the separation of powers by limiting the authority of courts, whether the exception to the pardon power for impeachment cases does more than prevent the President from blocking the impeachment of federal officeholders, and whether pardons are invalid when issued as the result of fraud, bribery, or other unlawful conduct, The Article explains why the clemency granted Roger Stone is likely to be invalid and why an Attorney General in a post-Trump administration could seek a declaratory judgment saying so. The second part of this Article shows how the pardon power has been corrupted over the past 40 years. It asks whether the Framers erred by granting a nearly unfettered power to the President.