Should Presidential Pardon Power be More Restricted?

Our nation’s instruction manual — the Constitution — assigns the power to pardon federal crimes to the president. The pardon power is supposed to be a safety valve. It allows the president to fix mistakes made by the federal justice system and to grant mercy to wrongdoers.

The pardon power is different from other constitutional powers. It is unchecked and absolute: There is no other branch of government that can interfere with a president’s pardons. The Constitution was created in the shadow of absolute royal power; it was designed to resist the corruption of such power. The division of government into three separate branches is meant to ensure a system of checks and balances on government power. From this perspective, the pardon power stands out: The unilateral pardon power looks like the last remaining remnant of royalism in the Constitution.

State governments can also issue pardons. Historically, the governor of each state had the power to pardon state crimes. But over time, that has changed. In many states, the power to pardon criminal offenders is no longer concentrated solely in the governor’s office. In some states, that power is split between a governor and a group of appointees. Why the change? Some people thought that a governor with absolute pardon powers didn’t have the time to make thoughtful, well-considered decisions. Others feared that a governor might hand out pardons to political supporters — or might be tempted to take a payment in exchange for a pardon. That is why the law of many states has moved away from a solo, absolute pardon power.

Today, however, the way the president exercises his pardon power is disturbing and unprecedented. The current resident of the Oval Office grants pardons much more often than previous presidents. He has pardoned disgraced politicians, many of his campaign supporters and even business associates of his own family.

Do Donald Trump’s pardons give us good reason to change the rules of the Constitution? Is it time to put the brakes on solo pardon power? I think there are lessons to be learned from the president’s abuse of office. The Constitution encourages cross-branch consensus in almost every other realm of federal power, so that different parts of government must work together to make important decisions. It’s time to change the rules on pardons and remove the last trace of absolute, unaccountable royal power from the Constitution.