Given President Trump’s reported intention to grant pardons or other kinds of clemency in a string of troubling military cases, coming on top of his growing record of politically-driven civilian pardons, the country would benefit from a fresh look at the pardon power. Congress cannot interfere with the exercise of that power, but there are some procedural reforms it can make. In addition, it would be worthwhile to identify neutral principles for its exercise. Doing so would foster informed consideration of the president’s actions in the court of public opinion as well as in the House of Representatives, where impeachments begin.
The starting point is an 1866 Supreme Court decision, Ex parte Garland, that dealt with whether Congress could enact a law that in effect prevented President Andrew Johnson from using the pardon power to lift disabilities to which former Confederates were subjected. In Garland’s case, the disability concerned his right to practice law. The opinion recites that Congress cannot interfere with the pardon power, which Article II of the Constitution confers on the president. Garland wound up being able to practice law because of his pardon, an Act of Congress to the contrary notwithstanding. The court wrote:
“This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”
But is there nothing Congress can do? With numerous co-sponsors, Representative Adam Schiff (D-Calif.) has introduced a short bill styled The Abuse of the Pardon Prevention Act (H.R. 1627). It requires the Attorney General to submit to congressional committees all investigative materials obtained when a pardon is granted in a case in which the president or a relative was a target, subject or witness.
While constitutional, Mr. Schiff’s bill does not go far enough. Congress should enact legislation that requires the president to make public in a timely fashion all applications for pardons and all pardons and other grants of executive clemency, regardless of who is involved. Notice of applications and grants could be published in the Federal Register for comment and the underlying documents (redacted only for core Privacy Act information such as social security numbers or medical/psychiatric information) made available online in real time. This would permit law enforcement agencies, crime victims, legislators, and others with an interest to make their views known, rather than have the pardon process conducted in secret, as is now typically the case.
Given the Garland decision, it is very doubtful that Congress can legislate a mandatory waiting period before the president could act, and a determined president could still act before the public and interested parties had a meaningful chance to comment. But public notice of the application and timely online availability would at least make informed decision making more likely—and foster greater public confidence in the exercise of the pardon power. This kind of legislation could deter some hasty and indefensible grants of executive clemency.
Congress could also require the Executive Branch to post online any communications that are received in connection with pardon applications, including both supporting materials and objections. At present, a pardon applicant may be blindsided by opposition from inside and outside the government and have no opportunity to respond. This can be highly unfair. Curing it in no way invades the president’s substantive prerogative to grant or deny an application.
Writing for Just Security, Chris Jenks has suggested that some explanation is desirable for why a pardon has been granted. While Congress’s ability to require an explanation presents a significant constitutional question, presidents ought to do this without having their arms twisted. The explanation need not be long or detailed.
Congress should develop guidelines for federal pardons and other forms of clemency. These would not bind the Executive Branch, and a pardon or other act of clemency granted in violation of them would remain valid. They should reflect neutral principles that would be the same regardless of which party controlled the White House or either house of Congress. Here are some possibilities:
- No pardon or other form of clemency may be granted in exchange for a thing of value.
- No person who has contributed to the president’s campaign may receive a pardon or other form of clemency.
- Pardons and other forms of clemency may not be granted or denied on a discriminatory basis, including race, creed, color, sexual orientation, wealth, immigration status, or political affiliation.
- No pardon or other form of clemency should be granted on the basis of legal errors in the underlying criminal proceeding unless there is a compelling reason the applicant was unable to obtain post-conviction relief from a court of competent jurisdiction.
Finally, in light of the military cases that reportedly are candidates for Memorial Day clemency, an important neutral principle is that no pardon or other form of clemency should be granted when doing so would forgive, condone, or mitigate a war crime.
Presidents should be strongly discouraged from exercising the pardon power in ways that subvert American adherence to the law of armed conflict. The country has a duty to deter, investigate and prosecute war crimes. To permit open-ended use of the pardon power in these circumstances would blow a hole in our compliance with those requirements and subvert our own ability to demand compliance by opposing forces with the law of war.
Eugene R. Fidell teaches at Yale Law School and is of counsel at the Washington, DC law firm Feldesman Tucker Leifer Fidell LLP. He edits the blog Global Military Justice Reform, globalmjreform.blogspot.com.