Revising the pardon power — let the Speaker and Congress have voices

In the wake of defeat at the polls, the courts, and the Electoral College, President Donald Trump has resumed pardoning allies and cronies. Undoubtedly more controversial pardons will come in his final days in office. Trump’s abuse of the pardon power harms the nation. Designed to be a benign instrument for dispensing mercy and for quelling civil unrest when warranted, 90 percent of Trump’s pardons have been used for those with personal connections to him or to advance his political goals, such as nullifying the results of the Mueller investigation.

If abuse of the pardon power were unique to Trump, we could perhaps relax on Jan. 20 at noon. Unfortunately, Trump has only accentuated a trend that began when President Gerald Ford pardoned ex-president Richard Nixon, continued when President George H. W. Bush pardoned the Iran-Contra conspirators, and continued further when President Clinton held a “pardon party” on the last day of his presidency. The only good news emanating from President Trump’s abuses is that they are so egregious, they may lead to long-needed reform of the pardon process.

A variety of reforms have been suggested: prohibition of self-pardon, prohibition of pardons of family members, prohibition of pardons during the lame duck period, limitation of pardons to indictments already brought, prohibition of pardons for offenses committed against the judiciary, mandatory adherence to the recommendations of the Office of the Pardon Attorney, greater transparency, and others.

While these suggestions have virtues, it is very hard to anticipate everything that should be forbidden or required, especially abuses that are “merely” unseemly, such as the recent pardoning of war criminals. We suggest instead a structural reform: passage of a constitutional amendment requiring that all presidential pardons be co-signed by the highest ranking independently elected constitutional official in the line of succession, the Speaker of the House.

Would this reform stem the abuses? If these restrictions had been in force, would Speaker Carl Albert have co-signed for the Nixon pardon (Ford), Tom Foley for Iran-Contra (Bush 41), Dennis Hastert for Marc Rich (Clinton), Paul Ryan for Joe Arpaio and others (Trump), or Nancy Pelosi for the raft of Trump pardons descending on us now? We can’t be certain, but bringing a second high official into the process would allow assessment of individual pardons by a constitutional officer who is not beholden to the president. This process should decrease the risk of questionable pardons.

We also propose a second section of the amendment. The Founders knowingly wrote the Constitution as an outline, with the expectation that the blanks would be filled in with experience. While introducing the Speaker of the House in a new role would be salutary, further experience might reveal a need for additional changes. This second section would then be helpful, because instead of needing yet another constitutional amendment, Congress could simply pass new legislation in the usual fashion. Both Congress and the president would have a significant role in passage of any future changes, since the president would retain the power of the veto over the prospective legislation.

The current text in Article II, Section 2, Clause 1 of the Constitution is brief:

The President … shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. 

Here is our proposed amendment: 

Section 1 (adapted from Article I, sec. 7 of the U.S. Constitution) —

Any Reprieve or Pardon granted by the President for Offences against the United States shall, before it becomes effective, be presented to the Speaker of the House of Representatives. If the Speaker approves, the Speaker shall sign it, but if not, the Speaker shall return it to the President with the Speaker’s Objections. If any Reprieve or Pardon shall not be returned by the Speaker within ten Days (Sundays excepted) after it shall have been presented to the Speaker, the Reprieve or Pardon shall become effective, in like Manner as if the Speaker had signed it.

Section 2 (adapted from Amendment XIV, sec. 5 of the U.S. Constitution) —

The Congress shall have power to further enforce, change, or restrict the power of the President to Grant Reprieves and Pardons for Offences against the United States by appropriate legislation.

If unreasonable and self-serving pardons were just a lapse with this president, we could hope that traditional norms would reappear, and constitutional reform would be unnecessary. Given the post-Watergate trend, however, this amendment would add guardrails to the power without adding undue complexity.

Budd N. Shenkin, M.D., M.A.P.A., is a Member of the Board of Advisors of the Goldman School of Public Policy at the University of California, Berkeley.

David I. Levine, J.D., is Raymond Sullivan Professor of Law, University of California, Hastings College of the Law, San Francisco.

The authors have also written “Should the Power of Presidential Pardons be Revised?”published in the Hastings Constitutional Law Quarterly (2019).