We must curtail presidential pardon power in case Trump wins

According to Alexander Hamilton, the immense unilateral power to pardon “would naturally inspire scrupulousness and caution” in the president.

Clearly, then, the drafters of the Constitution did not recognize the danger posed by a president as craven, nepotistic and reckless as Donald Trump.

In his first term, we saw how Trump debased this tool of mercy, handing the controls over to his son-in-law to help their felon friends. The prospect of Trump’s use of this power in a second term demands reform.

The Framers of the Constitution provided the president the power to issue pardons and reprieves, as a safety valve to ease the potential excesses of the criminal justice system. In Federalist 74, Hamilton describes how all criminal systems contain the prospect of unnecessarily severe punishment. To check the courts, the president — and only the president — could fix miscarriages of justice.

But there is one problem: that requires a president who actually cares about justice. Without that, the pardon power can devolve into a license for lawlessness issued only for the president’s gain.

That is how Trump used the pardon power in his first term, as a favor to his family, friends and political allies. He pardoned Michael Flynn, Paul Manafort, Roger Stone, Steve Bannon and George Papadopoulos, his political operatives.

Toward the end of his presidency, the Department of Justice process was replaced by Jared Kushner’s whims as he handed out pardons to his family and friends. Kushner is not a lawyer or criminal justice expert. His only experience was that his father was convicted of illegal campaign contributions, tax evasion and witness tampering and served two years in federal prison. (He received a full pardon from Trump through his son.)

In the Trump White House, it did not matter how deserving one was or whether clemency itself was being exercised fairly. Trump’s pardons were a game of access. If you or your family could get to Jared Kushner to plead your case, perhaps you could see a reprieve. If you were not in their social orbit, your case was undeserving of consideration.  

Therefore, it did not surprise me to read that Jonathan Braun, whose drug sentence was commuted by Trump, was recently arrested for allegedly punching his father-in-law. Court documents describe Braun also recently assaulting his wife. Even before receiving clemency, Braun’s threats and assaults were well known. Court filings detail how he threatened a Rabbi who had borrowed money to renovate a preschool. He was also accused of throwing a man off a deck at an engagement party.

So why was he released from prison? We only know how it started: Braun’s family contacted Kushner’s father. We also know that friends of Braun’s family said the family was willing to spend millions to get Braun out of jail. This wasn’t a commutation vetted by the Department of Justice — in fact, it surprised prosecutors and undermined a large predatory lending case in New York. We can only surmise what happened between reaching Kushner’s father and the award of clemency. 

Trump is now running for a second term. He has already promised to release those convicted on Jan. 6 charges. Several Framers did foresee such a president and argued during the Constitutional Convention that there should be an exception to the pardon power for treason. Ultimately, that language was not included, and we do not know why.

Today, that omission seems fateful. If reelected, Trump promises to release from prison his supporters who, at his urging, stormed the Capitol and tried to prevent Joe Biden from being certified as president. It was the first time since the War of 1812 that the Capitol had been overtaken. If the Framers did not recognize the need for this exception in 1787, we should in 2024.

I have proposed H.J.Res. 77, a Constitutional Amendment to address these concerns —  though it takes a different approach. Rather than naming a specific crime, my amendment would prohibit presidents from pardoning certain people: themselves, their family members, members of their administrations, former campaign staff or anyone who committed a crime directed by the president or directly motivated by the president’s interest.

While it would not reach every abuse of the pardon power, my amendment at least would make clear that any pardon issued for a corrupt purpose is invalid. No pardoning violent mobs directed by the president. No pardons in exchange for campaign donations. No pardons for family members.

Trump may have most conspicuously and dangerously used the pardon power, but he is not the only president who has questionably used the pardon. That is why the American people must exercise our scrupulousness and caution and reform the pardon power.

Steve Cohen, a senior member of the Judiciary Committee, represents Tennessee’s 9th District in the U.S. House of Representatives.