Rein In the Presidential Pardon Power

National Review Online

Monday, December 08, 2025

 

Our Constitution was framed by wise men, and it has served us well. But they were also wise to give us the power to amend it. The time has come to use that power to rein in or abolish presidential pardons.

 

Article II gives the president the sole and unchecked “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This is limited only in two ways: it cannot prevent removals from office by impeachment, and it applies only to federal, not state, crimes. It is the closest thing to a royal power possessed by any one official of the national government. Once issued and accepted, a pardon cannot be stopped by legislation or the courts, or undone by a subsequent president. The only real remedies for presidential abuse are political and reputational.

 

From the beginning, the pardon power had its republican critics, but it long served its purpose. Alexander Hamilton argued, in Federalist No. 74, that presidential pardons could be best deployed in negotiating with rebels to lay down their arms. It was instead more commonly used to close eras of rebellion after the fact, from George Washington pardoning the leaders and participants in the Whiskey Rebellion six years later to more controversial pardons after the Civil War and after the draft resistance of the Vietnam era. Abraham Lincoln commuted a great many death sentences for deserters and Native American rebels, showing how clemency can be balanced with law, order, and justice. Warren Harding pardoned the unpopular socialist dissenter Eugene V. Debs. Gerald Ford’s pardon of Richard Nixon after Watergate now looks like an act of self-sacrificing statesmanship that ended a long national nightmare but may have cost Ford reelection. Presidents have also used pardons to end abuses of lawfare, as George H. W. Bush did in pardoning Caspar Weinberger.

 

But several factors have conspired to produce more abusive pardons and fewer constraints for an already overbroad power. Since the failure of the Clinton impeachment, our presidential politics has de-emphasized character. The decline of Congress has left presidents less able to be checked. Lawfare and the vast expansion of federal criminal law have led partisans to rationalize tribal protection of their own side. Successive White Houses have grown bolder in disregarding an institutional pardon process, in back-loading pardons to the end of a presidency when political checks are least effective, and (in a Biden-era innovation) in letting staffers mass-produce pardons signed by autopen that are only nominally presidential decisions. Hamilton argued that federal justice might be too “sanguinary” without pardons, but that was in an era when felonies commonly led to executions; today, the federal death penalty is rare, and Joe Biden used commutations to all but abolish the federal death penalty without going through Congress to do so.

 

Recent Democratic presidencies have produced enough shocking examples of pardon abuse to convince any Republican that the process is hopelessly poisoned. Bill Clinton effectively sold pardons, even to the fugitive from justice Marc Rich. Political accountability for this fiasco was so tepid, the Justice Department flunkey who carried it out (Eric Holder) later became Barack Obama’s attorney general. Joe Biden handed out pardons like candy to his corrupt family members to cover the tracks of his family influence-peddling business — including pardons announced so late they were publicly known only after dignitaries were seated to witness Trump’s inauguration — then let his staff cover those tracks by mass-producing autopen pardons. That’s without even discussing the various left-wing radicals and terrorists pardoned by the Clinton, Obama, and Biden administrations for reasons of vote-buying and ideological sympathy for political violence.

 

Donald Trump’s presidencies have offered Democrats plenty of reasons of their own to mistrust the pardon power. Trump has openly used pardons, commutations, and clemency as leverage to gain political support from corrupt Democrats, to reward factional allies within the Republican Party such as Roger Stone, Steve Bannon, and Joe Arpaio, and to mass-absolve participants in the January 6 riot at the Capitol. Trump has capriciously bulldozed the long-standing Justice Department process for issuing pardons. His latest pardons include Democratic Congressman Henry Cuellar, whom Trump seems to hope can be induced to switch parties; fraudster David Gentile, whom Trump freed from paying $15.5 million in restitution to his victims; and former Honduran President Juan Orlando Hernández, a convicted narco-trafficker of the sort that Trump is simultaneously claiming the authority to kill by drone strike without trial.

 

Enough is enough. None of this benefits anyone outside the privileged circles of Beltway influence or the cesspools of ideological extremism. If Congress passes a constitutional amendment to reform or abolish the pardon power on a timeline that is not obviously partisan, there might be enough popular support to get state legislatures on both sides of the partisan divide to prevent future mischief. A popular constitutional uprising against bipartisan elite corruption would be the healthiest sort of civics and would have met with the Founders’ approval.

 

Reforms short of complete abolition should be considered first. The easiest is that departing presidents could be prevented from issuing pardons between Election Day and the end of their terms, or at least have their power to do so curbed by their successors or by Congress. That would end pardons for which nobody could be accountable. Some classes of recipients — such as blood relatives, close aides, or alleged co-conspirators of a president — could be removed from the list of recipients of a unilateral pardon.

 

Alternatively, the pardon process could be subjected to systemic checks. Presidents could be required to post potential pardons for a notice and comment period, after which they might require the assent of other political actors, including leaders of Congress and the courts — or at least see their pardons subjected to a veto by either chamber of Congress. A separate body might even be created to review pardons. An amendment that strips presidents of their unilateral pardon power might even expand the scope of that power, allowing a politically accountable consensus to pardon worthy targets of state as well as federal offenses.

 

Another approach would be to resurrect a proposal that Roger Sherman made at the Constitutional Convention that would subject pardons to Senate approval just like appointments.

 

All of these are worthy topics for legislative debate, if we still do such things in Washington. Failing a thoughtful consensus, it would not be the worst outcome if the pardon power was outright abolished. It now engenders more mischief and scandal than the good it does.