House Democrats renew push for checks on presidential pardons

Democratic lawmakers are weighing a number of options for limiting presidential pardon power in the wake of what they see as an abuse of the system by former President Trump.

Trump signed some 74 pardons on his last day in office, including for his former chief strategist Steve Bannon, while commuting the sentences of 70 others.

It’s a balancing act for some Democrats who are eager to see the office limit jail time for those who have received heavy sentences but want guardrails to ensure the president doesn’t use their power to assist allies and silence potential adversaries.

“We know both caucuses appreciate freedom. When considering what is the proper scope and use of the clemency power however there is another matter to consider which is whether there are or should be limits on the power when a president grants clemency for self serving or corrupt purposes, rather than as an act of mercy,” said Rep. Steve Cohen (D-Tenn.), chair of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties for the House Judiciary Committee.

“During the investigation of the special counsel Robert Muller into possible Russian interference in the 2016 presidential election, President Trump on multiple occasions dangled the possibility of pardons for witnesses who refused to cooperate.”

In total, Trump granted 143 pardons and commuted 94 sentences. That included pardons for Roger Stone and former national security adviser Michael Flynn, both of whom were implicated in the Mueller investigation. Trump also commuted a number sentences for drug-related crimes, some after being lobbied by Kim Kardashian. 

Democrats have introduced a number of bills to check presidential pardon power – efforts that Republicans warn could violate the president’s constitutionally given right.

“That power is best vested in the president, as it was designed in the constitution, for the president to exercise as they see fit based upon their personal judgement and notion of justice,” said subcommittee ranking member Mike Johnson (R-La.).

Legislation that would limit those powers have lingered in the House, even under Democratic leadership.

House Intelligence Committee Chair Adam Schiff (D-Calif.) plans to reintroduce legislation that would put the president in the position of triggering bribery laws if they offered a pardon in exchange for a “thing of value.” Another measure would require the president to get approval from Congress before offering a pardon to someone connected to an investigation into the president or their family. 

And Cohen has reintroduced a constitutional amendment that would limit the president’s ability to give pardons to family members or use them for personal benefit.

“President Trump also reportedly discussed pardoning himself and his children in his final days in office. We presume he didn’t do that but we don’t know that for a fact because there is such a thing as a secret pardon, which is something we should address today,” Cohen said.

Cohen’s constitutional amendment would face a high bar, but Schiff’s legislation could face better prospects with a Democrat-led Senate. 

Those who have warned again either approach say lawmakers already have remedies to check presidential power.

“Today we’re seeing that they can impeach a former president, apparently that’s the new rule,” said Josh Blackman, a law professor with the South Texas College of Law Houston.

“There are political remedies, but I think trying to legislate in advance is problematic, because now whenever the president considers ‘Do I issue a pardon? Do I not?’ he’s always thinking, ‘Man if I issue this pardon I’m going to be in trouble.”

Beyond the focus on pardons as a way to aid allies, some advocates encouraged lawmakers to establish an advisory board on pardons. The Justice Department has such a system in place – one that was often ignored during the Trump administration 

“Congress should also explore the idea of independent clemency boards to review clemency petitions and advise the president. This could eliminate biases and conflicts of interest inherent in the current system, which often relies on prosecutors at the Department of Justice to serve as a check on their own prosecutions. Members of such a clemency board should reflect our country’s diversity and be representative of stakeholders inside and outside the criminal justice system,” said Karen Hobert Flynn, president of Common Cause.