Should there be more limits on presidential pardon power?

·Senior Editor
·6 min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

President Trump has issued a number of controversial pardons during his time in office, but none sparked the level of criticism as his decision late last week to commute the sentence of his longtime friend and adviser Roger Stone. The commutation allowed Stone to avoid a 40-month prison sentence after he was convicted for lying to Congress, witness tampering and obstructing Robert Mueller’s investigation into the 2016 Trump campaign.

The move was well within the scope of the pardon powers granted to the president in the Constitution, but it was still met with harsh criticism. Stone’s connection to the investigation directed at the president represents “unprecedented, historic corruption,” Republican Sen. Mitt Romney said. House Speaker Nancy Pelosi called for legislation that would prevent presidents from using their pardon power to protect themselves from criminal prosecution.

Trump isn’t the first president to court controversy with his pardons. Gerald Ford pardoned his predecessor, Richard Nixon, for the Watergate scandal. Jimmy Carter granted clemency to people who dodged the draft during the Vietnam War. George H.W. Bush cleared Reagan-era officials in the Iran-Contra scandal. Bill Clinton even pardoned his own half-brother.

Why there’s debate

To some legal experts, Trump using pardon power to reward political allies and alleged co-conspirators is the continuation of a trend that has seen the authority drift further and further away from the intentions of the Founding Fathers. Pardons were designed to be a way for the executive branch to balance against abuses by the judiciary. Today, it’s more often used to undermine legitimate prosecutions, critics say. This shift has occurred at the same time as the main remedy for pardon abuses — impeachment — has proven to be an insufficient deterrent.

In order to curb abuses, some argue, the pardon power must be revised to limit its scope. The most common suggestion is for presidents to be barred from pardoning anyone who is directly connected to an impeachment investigation. Others have argued for including Congress in pardon decisions, either by giving it more oversight or by shifting the entire process to the legislative branch. Either change would likely require a Constitutional amendment, though some legal scholars argue that some limits could be imposed by the judicial branch.

Opponents of the idea say limiting the pardon power in response to a small number of high-profile cases would ultimately prevent presidents from using it in the way it was intended. As the country’s views on criminal justice evolve, pardons can be used to correct the mistakes of the past. Barack Obama issued nearly 2,000 clemency orders during his presidency, mostly to people convicted of nonviolent minor offenses. Advocates for ending mass incarceration say the pardon power is a critical tool in reducing the size of America’s prison population.

What’s next

Pelosi’s proposed legislation is unlikely to gain any traction in the Republican-led Senate and would likely be challenged on Constitutional grounds if it did pass through Congress.

Stone’s commutation has increased speculation that Trump may issue pardons to former national security adviser Michael Flynn and ex-campaign manager Paul Manafort. It has also renewed debate among legal experts over what might happen if Trump attempts to pardon himself before leaving office.

Perspectives

Supporters

Presidents shouldn’t be able to pardon witnesses to their own alleged crimes

“It is reasonable, then, to find the presidential pardon of witnesses in an impeachment proceeding automatically invalid. Otherwise, exercise of the pardon power seriously threatens the effective use of the impeachment power as a constitutional check.” — Martin H. Redish, New York Times

Trump’s use of pardons is a threat to American democracy

“When President Donald Trump commuted Roger Stone’s sentence of 40 months in prison for lying to Congress and tampering with a witness, he crossed into new territory dangerous to the republic. … Our only choice is to amend the Constitution and restrict the use of this power to its original purposes.” — Christopher F. Droney, Hartford Courant

The pardon power should be shifted to Congress

“I propose a simple constitutional reform that would preserve the federal government’s ability to pardon but would take it out of the hands of the president.” — Daniel Carpenter, Washington Monthly

Impeachment isn’t a strong enough deterrent to stop pardon abuses

“The impeachment power has proved to be a paper tiger when it comes to the presidency. ... So now a president willing to abuse the pardon power has little to fear from Congress.” — Keith E. Whittington, Lawfare

The courts could prevent corrupt pardons without a constitutional amendment

“There is a strong argument, rooted in the Constitution’s text, history, values, and structure, that in addition to banning the prevention or undoing of an impeachment, [the impeachment clause] also bans a president from using the pardon and reprieve power to commute the sentences of people directly associated with any impeachment charges against him.” — Corey Brettschneider and Jeffrey K. Tulis, Atlantic

A presidential self-pardon could create a true constitutional crisis

“Would a presidential self-pardon be lawful? The short answer is we don’t know for sure, because no president has ever tried it. The Constitution itself does not specify either way and there is no statute or case law on the issue. But you can already see the battle lines forming.” — Elie Honig, CNN

Skeptics

Overreacting to Trump’s pardons would only hurt people who deserve freedom

“Retributionism — the raw instinct that tells us we want to hurt someone who has done wrong — rarely leads us to a good place, and flies in the face of the spiritual beliefs of most Americans. [A few of Trump’s allies] staying home is not the worst thing in the world, especially compared to the decades of racial injustice and bad policy that filled our prisons, problems that clemency can help address.” — Mark Osler, The Appeal

Pardons are needed to end mass incarceration

“Both the crisis of mass incarceration and the racially disparate administration of criminal law demand all the tools that can be mustered to correct them, including pardoning. Pardons like those of low-level drug offenders help to accomplish the enlightenment goal of ameliorating criminal law.” — Bernadette Meyler, The Hill

The existing checks on pardon power are enough

“The Constitution’s pardon power is not an unlimited, unaccountable power. The more you abuse it to nullify the rule of law for your own cronies, the more such misconduct can serve as the basis for post-presidential prosecutions or another round of impeachment.” — Just Security

Pardons can be fixed by creating a fairer decision-making process

“The pardon power is important. There will always be mistakes and excesses in the criminal-justice system. But the power’s exercise ought to reflect equitable deliberation. If, say, too many people are in federal prison for committing low-level drug crimes, presidents should establish procedures to review everyone with a claim who is serving time for these offenses.” — Editorial, Washington Post

Is there a topic you’d like to see covered in “The 360”? Send your suggestions to the360@yahoonews.com.

Read more “360”s

Photo illustration: Yahoo News; photos: Getty Images