US presidency: latest pardons cause serious rule of law concerns
An explosion caused by a police munition is seen while supporters of US President Donald Trump riot in front of the US Capitol Building in Washington, DC, 6 January 2021. REUTERS/Leah Millis
On the first day of his second term back in office in January, President Trump granted clemency to approximately 1,500 people who’d either been convicted or criminally charged in the 2021 attack on the US Capitol. He issued commutations for 14 militia organisation members, and a blanket pardon for others. President Trump said that those given clemency had ‘already served years in prison’ and criticised the conditions of their captivity.
Meanwhile, former President Joe Biden issued a pardon to his son Hunter during his final weeks in office. This meant Hunter avoided possible prison time for federal felony gun and tax convictions. The former President said his son had been ‘singled out’, calling his cases ‘a miscarriage of justice.’
Trump and Biden’s pardons have brought renewed attention to the use of this broad power of the executive. There can be no doubt that both presidents had the constitutional power to issue the pardons, says Matt Kaiser, Co-Chair of the IBA Criminal Law Committee. But, he believes, that doesn’t necessarily make them right from a policy perspective.
‘Under the Constitution, the expectation was that a president would wield that power broadly in the public interest or in the nation’s interest. In each case, there’s a pretty strong argument [that] they’ve fallen short [of that],’ says Kaiser, who is currently representing clients bringing two lawsuits against President Trump over the storming of the Capitol on 6 January 2021.
‘We want politicians to serve the public, not themselves,’ says Harold J Krent, a professor of law at Illinois Tech’s Chicago-Kent College of Law. Referring to Biden’s pardon of his son and President Trump’s clemency towards the rioters, he says that ‘in those instances, the president is wielding the pardon power to benefit either a close circle of friends or himself, as opposed to trying to do what is in the public interest.’
Yes, it can be abused, but I wouldn’t want to throw out the baby with the bath water and try to limit a president’s ability to show compassion
Harold Krent
Professor of Law, Illinois Tech’s Chicago-Kent College of Law
For Rachel Goodman, counsel at Protect Democracy – a Washington, DC, nonprofit – President Trump ‘has really broken new ground within that context by using the pardon power to license violence and lawbreaking on his behalf and to otherwise empower his henchmen.’ In 2019 her organisation filed an amicus brief in an appeals court case arguing that Trump’s pardon of an ex-sheriff who had been convicted of criminal contempt was unconstitutional.
The pardon power has been used by presidents throughout history to shorten sentences for federal crimes through commutations or to forgive them altogether. They’ve been seen as a way for criminal justice to evolve with changing societal expectations. They’ve also been viewed as the last-possible corrective to the harshness of the US criminal justice system. For instance, during his second term, former President Barack Obama issued pardons or commutations to hundreds of people convicted of non-violent drug offences.
Executive grants of clemency have also been deployed with the intention of unifying the nation and closing the chapter on an issue that has deeply divided it. President Gerald Ford, for instance, pre-emptively pardoned Richard Nixon for the former president’s actions in the Watergate scandal in the 1970s – a move widely considered to have cost Ford his re-election.
Presidents can also wield the power to serve their own interests – thus entering dangerous territory. Self-interested pardons raise rule of law concerns by licensing illegal conduct, says Kaiser. ‘If a president thinks that there’s an illegal act that would serve him to have done, the president can go out, have someone do it, and guarantee them a pardon at the back end,’ he explains.
Kaiser adds that the 2024 Supreme Court ruling giving the president broad immunity from criminal prosecution has moreover made it more difficult to prosecute a president for such wheeling and dealing. The judgment ‘means the president, in some extreme cases, doesn’t have to follow the law,’ he says.
Krent views pre-emptive pardons as especially concerning. ‘It’s basically saying you can’t even be subject to a prosecutor and a jury and a judge,’ he says. ‘There is something publicly beneficial about having – even if someone will be pardoned – a fact of conviction on a record.’
At the same time, Krent says presidential pardons serve as an important check on excessive judicial sentencing and congressional actions. He’s not in favour of reforms that would introduce a form of oversight over or limits to the presidential pardon power. ‘Yes, it can be abused,’ he says. ‘But I wouldn’t want to throw out the baby with the bath water and try to limit a president’s ability to show compassion and mercy through the pardon power.’
Pardons can’t be revoked or overturned by later presidents. Because the president’s authority to issue pardons is explicitly laid out in the Constitution – where it says the president ‘shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment’ – significant changes to curtail the presidential clemency power would require a constitutional amendment.
Goodman says that frustration over the recent use of pardons could pave the way for the amendment to be made. Indeed, her organisation has endorsed such an amendment – seeking to curtail the president’s ability to issue self-dealing pardons – as introduced to Congress by Representative Stephen Cohen. ‘That may provide an opening for some conversation, both around legislative changes with respect to transparency and also potentially bigger systemic changes down the road,’ says Goodman.