The framers of America’s constitutional system gave presidents the immense, virtually unrestricted power to pardon any criminal, at any time, for any reason. In principle, that was a wise move: It provided yet another check on the judiciary, balancing out the powers of separate branches of government. But in practice, presidents have repeatedly abused the pardon power not to remedy injustices, but to create them.
Rule of law is supposed to be singular. It’s supposed to be the great equalizer between rich and poor, powerful and powerless. Instead, the United States has two rules of law: one for the politically connected and one for everyone else.
Presidential abuse of the pardon power is nothing new. In the closing hours of his presidency, Bill Clinton pardoned Marc Rich, a wealthy commodities trader who had been convicted of tax evasion and making illegal oil deals with Iran even as that regime was holding Americans hostage. Rich, however, was a major donor to the Democratic Party. Similarly, George W. Bush commuted the sentence of I. Lewis “Scooter” Libby, one of Vice President Dick Cheney’s aides who was convicted on four counts related to the leaking of an intelligence officer’s identity.
Yet President Trump’s abuses of the pardon and commutation power have been far more egregious than any of his predecessors’ abuses. From former sheriff Joe Arpaio to Michael Flynn and Roger Stone, being a friend or political ally of the president has functioned like a “get out of jail” card. (Trump also later gave a full pardon to Libby, whose lawyer, Victoria Toensing, is a Trump ally.) Meanwhile, those who told the truth in ways that criminally implicated the president (such as Trump’s former personal lawyer Michael Cohen) knew there would be no relief from the White House.
Such a warped system is an injustice in itself. But it’s far worse than that. Trump has used pardons to pervert rule of law in a more sinister way: Because he publicly dangled pardons during ongoing prosecutions, targets of federal investigations likely cooperated with law enforcement less than they would have otherwise. He used pardons not only to commute or eliminate prison time but also to protect himself and his allies from criminal liability. That’s a substantially worse abuse of presidential power than keeping one rich donor, like Marc Rich, out of prison. Now Trump is reportedly floating preemptive pardons for his children.
The current functioning of the pardon power is a maddening example of legalized political corruption. But with enough political will, it would be easy and popular to fix.
Pardons and commutations shouldn’t be eliminated altogether. Presidents have used the power to commute unjust or excessive sentences for poor, powerless, nonviolent offenders.
When he takes office, President Joe Biden should therefore champion a narrow amendment to the Constitution that only prohibits presidents from commuting sentences or pardoning individuals in cases where they have a conflict of interest. Specifically, the amendment would deny presidents the power to issue commutations or pardons to friends, colleagues, family members or themselves. Instead, any pardons or commutations for those individuals would be subject to a newly created independent, bipartisan panel composed of elected officials and ordinary citizens. If that panel agreed that a pardon or commutation was warranted due to prosecutorial overreach, it could proceed.
Such a committee might theoretically still grant a pardon or commutation to Marc Rich, Scooter Libby, Michael Flynn, Joe Arpaio or Roger Stone. But by taking the decision away from a president with skin in the game, fairness would be restored to the pardon process.
Yes, constitutional amendments are notoriously difficult to pass. The most recent amendment, which ensured that Congress could vote to change the salary only for future Congresses and not their own, was implemented nearly three decades ago. But successful amendments are most often related to structural problems with widely supported, common-sense solutions. This is one of those instances. After all, what politician wants to make the case to the public that presidents should indeed be able to pardon their cronies to protect themselves?
Now is also the right time. Such a proposal would have been dead on arrival under Trump, who would have bullied Republicans into opposing it. But Biden would be championing a proposal that limits his own powers, making Republican support possible. Take, for example, the allegations being made against Hunter Biden. It seems likely that they are politically motivated and will amount to nothing. But if there ever were any charges, Democrats should agree that it should be juries and judges who decide any defendant’s fate, not the defendant’s father. Saying so shouldn’t be remotely controversial. It’s a no-brainer in any democracy.
For too long, the Constitution provided a loophole that could be exploited by corrupt presidents. Now that the presidency of one of the most corrupt figures in American history is drawing to a close, it’s time to ensure that the loophole is closed, too. And the only way to do so is with a 28th Amendment.