Washington

Congress Finally Takes Aim at Reforming the Pardon Power

Remember when President Donald Trump pardoned Steve Bannon, Michael Flynn, Paul Manafort and Roger Stone (among others)? This naked use of presidential power transgressed almost every norm of executive behavior. Before it happens again, the problem needs to be fixed. In his misuse of the pardon power, Trump has provided a clear case-study for why congressional action is needed.

House Democrats recently introduced the Protecting Our Democracy Act, a substantial reform package aimed squarely at constructing institutional checks on the post- Trump presidency. Transparency and accountability are its two guiding principles. It includes provisions that tackle everything from increasing presidential transparency by enhancing emoluments statutes to demanding greater accountability via stronger guidelines on congressional subpoena enforcement and the presidential transition processes. And it reforms the use of the pardon power.

I have previously written about Trump’s alleged penchant for offering pardons in exchange for potential criminal conduct on his behalf. After his 2020 election defeat, he took this practice to a new level, issuing dozens of pardons in a mad dash through his final days in office. Though last-minute commutations and pardons are a common practice for outgoing presidents, Trump’s extravagance was yet another example of turning an ordinary presidential power on its head.

Reports quickly emerged that lobbyists in the Trump orbit were being paid exorbitant sums of money to extract pardons from Trump. Then there was the matter of Trump’s weighing a self-pardon in the wake of the Jan. 6 attack. (It’s times like these when I recall one of Trump’s main campaign taglines was “drain the swamp.”)

As he has with many core norms governing our political institutions, Trump exposed serious weaknesses in some of the Framers’ thoughtfully considered designs. But, as Federalist No. 51 famously reminds us, “if men were angels, no government would be necessary.” That’s where PODA comes in.

One of the difficulties with large-scale reform of the pardon power is its broad, discretionary nature. Article II, Section 2, Clause 1 of the Constitution is almost unlimited, declaring that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” In essence, aside from cases where a crime has not yet been committed or to avoid impeachment, Congress cannot, absent a constitutional amendment, limit the actual exercise of the pardon power by a president.

The PODA proposal does the next best thing. It carefully sidesteps this challenge, applying its twin principles of transparency and accountability to constrain how the pardon power is exercised. Instead of a constitutionally dubious reinvention of the pardon power, it embraces smart proposals meant to prevent abuse and establish needed guardrails on the post-Trump presidency.

PODA’s pardon reforms make three strong contributions toward this effort:

  1. It requires the Department of Justice and White House to provide Congress with relevant investigative materials for “covered offenses,” such as those connected to an investigation of the president or relatives of the president.
  2. It clarifies the federal bribery statute to include pardons and commutations as “official acts” and that offers of a pardon meet the definition of a “thing of value” – thus, criminalizing corrupt pardons.
  3. It rejects the legal validity of a self-pardon.

While each of these reforms has deep roots in Trump’s conduct as president, the main goal of these changes is to curb future abuses.

The Framers, though well-aware of man’s failings and imperfections, likely never contemplated misuse of the pardon power by a figure like Trump. The gaps he exposed show that we cannot count on norms and a presumption of regularity to prevent a future president from similarly testing the limits of their authority.

For better or worse, things have changed. The Trump presidency was an aberrant inflection point, exposing weaknesses in our institutions. There is no better way to close some of those gaps than PODA’s pardon power reforms.

 

Paul Rosenzweig is a principal at Red Branch Consulting; he was previously senior counsel to Kenneth Starr in the Whitewater investigation and a Homeland Security official in the George W. Bush administration.

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