By Andrew C. McCarthy
Saturday, April 25, 2026
Author’s note: Earlier this week, I participated in a
Federalist Society webinar, “What Did the Founders Think of the President’s Pardon Power?”
Below is the prepared version of my opening remarks.
I am a longtime advocate for the position that the
Constitution should be amended to repeal the pardon power. My views are
informed by up-close, personal experience.
Between 1998 and 1999, I had a lengthy litigation as a
prosecutor in the Southern District of New York in which I finally persuaded a
federal judge to rule that a Weather Underground terrorist, Susan Lisa
Rosenberg, should be forced to serve as much of her 58-year bombing sentence as
federal law would allow at the time.
That sentence, imposed in the District of New Jersey
(DNJ), had been exacerbated due to conduct in the SDNY for which, though it was
heinous, Rosenberg had not been convicted: As a member of the May 19th
Communist Organization, she participated with the Black Liberation Army and
other Weather terrorists in the 1981 Brinks robbery, in which two Nyack police
officers and a Brinks guard were murdered.
Rosenberg had been a fugitive during the SDNY Brinks
trial. When she was arrested in New Jersey in 1984 — in the midst of a bombing
plot and in possession of over 750 pounds of explosives — the SDNY opted not to
proceed against her on Brinks charges, figuring they’d be factored into her
sentence on the DNJ bombing conspiracy. By then, Rosenberg was about 30 and
looking at decades of incarceration.
After the SDNY judge finally rejected Rosenberg’s motion
to be released, I was shocked to learn, on opening a newspaper on January 21,
2001, that President Clinton had pardoned Rosenberg and another terrorist,
Linda Sue Evans, on his last day in office.
Other Clinton pardons were so outrageous that the
commutations granted to the two terrorists barely made the news. The most
notorious one, of course, was the fugitive Marc Rich, whose former wife
contributed heavily to Clinton and Democratic causes. It appeared to be a
flat-out quid pro quo.
Less notable, but important to me because I was by then
running the SDNY’s satellite U.S. attorney’s office in White Plains, were
Clinton’s pardons of four Hassidic Jewish convicts from the Village of New
Square, N.Y., whom we’d convicted in a massive fraud conspiracy. The Hassidic
community was known to bloc-vote. The pardon seemed patently intended to
persuade its members to vote for the president’s wife, Hillary Clinton, who was
running for one of the Empire State’s Senate seats. She won with what was, I’m
sure you’ll be stunned to learn, near unanimous support from New Square voters.
I learned two important lessons at the time.
First, despite the societal benefits that the Framers
intended to achieve by vesting the president with sweeping pardon power in the
late 18th century, the power had a tendency toward scandal that was sure to get
worse given how grossly abusive Clinton’s exercise of it had been. That was
especially clear with respect to term-limited presidents at the end of their
second terms — they had no prospects of another election and thus no need to
fret over public outrage.
Second, there was no practical recourse against abuse of
the pardon power. The Clinton pardons were investigated by the Justice
Department, including by my office in the SDNY. I was persuaded, as I believe
Main Justice was ultimately persuaded, that there was no potential for a
criminal prosecution — a conclusion that I believe is now all the surer after
the Supreme Court’s presidential immunity decision in Trump v. United States
(2024). The only real remedy is impeachment. No president has ever been
impeached and removed from office, and the remedy would be totally illusory
against a term-limited president who would be out of office by the time
Congress could act.
The pardon power is an anachronism.
When the Constitution was ratified, it was understood
that the federal law enforcement role would be minimal. The first Crimes Act in
1790 created just 17 crimes. In the main, they were extremely serious offenses
(such as treason, murder in federal jurisdiction, and piracy on the high seas).
Aside from the fact that the Framers knew the power would be trusted first to
President George Washington, a make of man very different from today’s
politicos, our governing structure ensured that pardons would be rare.
Until the explosion of federal crime legislation in the
late 19th and, particularly, the 20th centuries, the states remained
principally responsible for law enforcement in the United States. And, as is
our federalist wont, the states had experimented with various restraints on the
pardon authorities of their governors.
Moreover, the federal justice system today is
night-and-day different from its 18th-century predecessor. We now have a firmly
established court system and well-evolved due process mandates, with multiple
levels of appellate review, followed by rounds of habeas corpus review. The
odds that outrageous injustices will be done are minimal — particularly
compared to the first federal crimes over two centuries ago, many of which were
capital offenses. And Congress has enacted laws that allow the Justice Department
— through its elaborate architecture of incarceration and post-detention
administration — to provide relief in cases of true hardship.
There is no need for a unilateral executive pardon power.
In the rare event of real injustice, clemency could be granted by the normal
legislative process — which would give both Congress and the president a check
on each other’s inclinations toward self-interested pardons or commutations.
Indeed, Congress has shown itself fully capable of enacting legislation to
challenge convictions and reduce sentences.
It’s well past time to repeal the pardon power.
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