How to end abuse of the presidential pardon

Roger Stone. Michael Flynn. Paul Manafort. Charles Kushner. Who’s next? Giuliani? Trump’s kids? Trump himself?

There seems to be no stopping Donald Trump’s perverse pardon parade.

And on the surface, it appears Congress can do much to curb the president’s ability to pardon whomever he chooses.

Article II, Section 2, Clause 1 of the Constitution states that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United states, except in Cases of Impeachment.”

The Klein case

In 1863, Congress passed a law allowing the government to seize any property that had been used to bolster the Confederate rebellion. V.F. Wilson’s cotton farm was seized as a result. Later, President Lincoln offered a pardon to anyone who’d participated in the rebellion, on the condition that they would pledge allegiance to the Union.

Wilson did so, and after he died, his estate — administered by one John A. Klein — sued to recover the proceeds from the sale of his farm.

Klein won.

But the government appealed the ruling to the Supreme Court and, in the meantime, Congress did something else: It passed a new law that prevented anyone from using a presidential pardon to claim compensation or property rights.

The Supreme Court struck this law down in 1871 (United States v. Klein). By passing the law during the appellate process, the justices ruled, Congress was pre-empting the high court’s authority: In effect, lawmakers were seeking to force the court to decide the case in a certain way. This, the court ruled, violated the principle of separation of powers — that no branch of government should usurp another’s function.

For the same reason, the court also chided Congress for attempting to undermine the president’s pardon power. Chief Justice Salmon P. Chase wrote that the “legislature cannot change the effect of a pardon, any more than the executive can change a law.”

Ironically, the pardon itself violates the separation of powers — and blatantly — allowing the president to nullifying rulings made by the judiciary. Only the fact that the pardon itself is in the Constitution shields it from scrutiny, and challenge.

Indeed, the Supreme Court has made the pardon virtually bulletproof: a least when it comes to Congress. The court ruled, bluntly, in Ex Parte Garland (1866) that the “power of the President (to pardon) is not subject to legislative control” and that “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”

Things of value

What is, therefore, subject to legislative control?

For one thing, the Constitution explicitly grants Congress the power of the purse. Congress could, therefore, refuse to appropriate money to pay a pardoned person’s debt (Hart v. United States, 1886).

Congress also has the power of oversight. It has no control over the president’s decisions. But could it pass laws that do not constrain those decisions, but which define actions associated with them that should or may not be taken.

In fact, it has already done so, broadly, with regard to bribery of public officials.* The U.S. Code prohibits offering “anything of value” to a public official in exchange for an official act — and bars any official from accepting such a deal. A pardon is, without doubt, an official act. Would such an act nullify the pardon? It doesn’t seem to me that it would, because the courts have ruled that the president can pardon anyone for any reason — which would seem to include bribery.

(Congress could still impeach and convict a president for such actions, but impeachments rely more on political factors than on facts: a reality that became apparent when the Senate “acquitted” Donald Trump after he clearly offered something of value — U.S. military aid — to a foreign leader in exchange for a politically motivated investigation.)

A key distinction

If the president’s unfettered ability to pardon anyone for any reason sounds corrupt, contrary to common sense, and in violation of the Constitution’s broad protections, that’s because it is.

Even our most basic protections are limited based on content and intent. You have a First Amendment right to free speech, but that doesn’t mean you can defame someone or yell “Fire!” in a crowded theater. And if a judge orders you, as a juror, not to discuss a case with your family, you’d better not do so.

It seems absurd that the pardon power, which is much less fundamental to a democratic society than free speech (I would argue it’s not fundamental at all), should enjoy greater protections from content-based limits than any other right enshrined in the Constitution. That is, however, where we seem to be.

But here’s the good news: In the case of bribery, the pardon and the payoff are separate acts. So even if the pardon itself is unaffected, that doesn’t protect a president from being held to account for the bribery.

Separating a constitutionally protected right — such as the right or presidents to pardon whomever they choose — from actions surrounding it isn’t a novel idea. In fact, we do it all the time. The Second Amendment’s right to bear arms doesn’t entitle you to steal a rifle from your local gun shop or shoot someone you happen to dislike. The right to a trial by jury doesn’t give you the right to threaten or bribe jurors.

And if you can’t bribe jurors, you can’t bribe a president, either.

Potential guardrails

This distinction between the pardon and acts surrounding it should give Congress a great deal of latitude in imposing requirements on the president involving the pardon process — so long as the pardon itself isn’t conditioned on those requirements.

For example, the president could be required to provide a written rationale for any proposed pardon and present it to Congress. The president could still pardon whomever he wanted for whatever reason, and Congress could not “change the effect” of that pardon. But it could sanction the president if he failed to provide the required rationale.

Similarly, Congress could pass legislation prohibiting the president from discussing pardons ahead of time with either prospective recipients or the public at large, on the grounds that merely doing so can create abuse.

Simply raising the possibility of pardoning a political ally who has “dirt” on the president can be incentive to keep quiet. Suggesting a possible pardon for a major political donor could incentivize that donor to keep giving — in even larger amounts.

A principled president?

Another possibility is also worth considering. The Supreme Court’s separation-of-powers rationale for keeping Congress out of the pardon process doesn’t apply to the president.

The sitting president could simply decline to use the pardon power, and issue a statement that he would refrain from doing so on the grounds that it had been abused in the past, and he wished to avoid any potential appearance of impropriety.

Issue an executive order to that effect. Of course, this would only apply to his own presidency, as executive orders can be overturned by future presidents. However, overturning a strongly worded executive order referencing past abuses of the pardon power could carry significant political consequences by seeming to condone corruption.

Considering politicians in general are loath to do anything that restricts their own power, this would seem unlikely.

Trump isn’t the first president to issue pardons to friends and political allies. Gerald Ford, George H.W. Bush, and Bill Clinton did the same thing on a more limited basis.

Principled politicians are about as common as unicorns drinking from the Holy Grail.

But one can always hope.

* Title 18 of the U.S. Code 201, passed in 1919 and amended in 1948.

Note: I’m an author, not a lawyer. I majored in journalism, with an unofficial minor in logic and an emphasis on common sense.