The presidential pardoning power is valuable, but it must be circumscribed to a much greater extent than it currently is if it is to continue to have a positive effect on the governmental system of the United States.
One of the most unique aspects of the US Constitution is the presidential power to pardon those who have committed crimes. What began as a single line contained within Article II of the Constitution has ballooned to an aspect of governance that requires its own office and specialized attorney. The professionalization of the process indicates that a shift in scope and scale has occurred. The pardon retains value, but must be circumscribed to a much greater extent than it currently is if it is to continue to have a positive effect on the governmental system of the United States. The most efficient remedy to the problem is a joint relationship with Congress in the exercise of the pardoning power.
The right of a president to pardon comes from a single sentence in Article II of the US Constitution. The president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” What is striking about this is the lack of limits imposed on this power. There can be no objection by the other branches of government and there is no substantive explanation of what purpose the pardon is actually supposed to serve. It is probably the most powerful act that the Constitution permits a single actor – it allows the president to interfere in the sentencing of criminals, commute death sentences, or even eliminate criminal proceedings entirely.
Within the theory of separate powers the pardon served as an important check on an otherwise uncontrollable judicial branch.
We might first examine what need there is for a presidential pardon in the first place. A return to the time of the Founding Fathers is necessary in this regard. Anti-Federalists in the late 18th century were concerned about the permanent election of justices; their life tenure raised the spectre of monarchy. In The Federalist, particularly in Federalist 78, Hamilton penned an explanation of the reasoning behind the justice system, arguing that it would be the “least dangerous” branch of government. He suggested that, since legislative power was vested in Congress and military power in the executive, the Court would have little ability to actively affect the way in which policy was made and the nation was run. Nonetheless, despite the assurances of the Founding Fathers, many feared in the early years that the Court would erode the independence of the states or force judgments upon them, backed up with the assurance of non-removal.
It is within this discussion that the presidential pardon made sense to the Founders. It functions as an additional check to judicial power – in pardoning or granting a reprieve to an individual, the president could prevent the Court from overstepping the mark, or respond to an overstep by making the case (quite literally) disappear. The choice to vest this power in the president is similarly coherent within the 18th century political understanding – he was to be elected indirectly by the Electoral College and to serve as a figurehead without party affiliation. There could be no danger of him abusing the pardon to serve a partisan end, therefore, as he had none. Within the theory of separate powers the pardon thus served as an important check on an otherwise uncontrollable judicial branch.
The pardon served another important function which only became clearer as actual governing began. It was a method to defend the inviolability of the laws of the land while also allowing an exit route when political expediency demanded another outcome. Two examples might make this point clear: one very early on in the Republic’s life and one far more recent. The first was George Washington’s (and later John Adams’) decision to pardon leaders of the Whiskey Rebellion in the 1790s. Within the climate of the early US, there was a clear need to put down sedition and prevent further outbreaks, while recognizing that the rebellion contained valid objections. By releasing the leaders, Washington and Adams hoped to allay fears of a rampant federal government running over the will of the states, but could also maintain that the legal process had been followed. The pardon served as a vital release valve, releasing the pressure that had built up in the nation.
The more recent example comes from Barack Obama’s second term in office and the decision to release Chelsea Manning. She was sentenced to thirty-five years in prison for her role in releasing sensitive and highly classified documents to the media, many of them causing the US government embarrassment. Even from the time of her arrest there were questions over whether it was right to try Chelsea in a military court – the UN described the conditions she was kept in while waiting for military trial as akin to torture. Obama freed her in his final days in office, with Chelsea having served seven years of her sentence, saying “justice has been done.” In so doing he grounded his action in the idea that sometimes strict adherence to the law does not always produce the just outcome. The pardon here serves an important function, responding to public opinion to restore a balance between the rule of law and the will of the people.
The changing role of the presidential pardon is part of a broader pattern of power shifting within the executive branch.
These two examples demonstrate the pardon working effectively, if controversially. A cursory examination of presidential pardons reveals a trend away from a check on the judicial system and towards a political and far more self-interested use. JFK pardoned all those imprisoned for their first offence under the Narcotic Control Act of 1956, which in effect nullified the actual implication of the law. Bill Clinton pardoned his own brother, convicted of cocaine possession and having only served one year in prison. George W. Bush pardoned the chief of staff of Dick Cheney who went to prison for his role in the Plame Affair. Finally, Gerald Ford infamously pardoned Richard Nixon just before he was to be called for a hearing into the Watergate scandal, denying the courts any right to interview him or to ascertain whether he should have faced charges (he could not have been impeached). These examples demonstrate the capacity for abuse inherent within the pardon system; unchecked executive power offers those within the office the chance to take an aggressive and personal role in the United States, one that was not warranted by the Constitutional design.
The changing role of the presidential pardon is part of a broader pattern of power shifting within the executive branch. The Founders envisaged a figurehead, non-partisan president, elected to serve with no real legislative role. Obviously, this has not been the case – over the past two centuries the presidency as an institution has gathered far more power. The president is no longer without party; if anything, the president now represents the party most completely. Arthur Schlesinger wrote of the development of an “Imperial Presidency” in the 1970s, arguing that the executive had seized more and more power, pushing itself up to be the most powerful branch of the three. We might well reject this notion but accept the suggestion at the heart of the argument. The presidency has changed; the president makes policy and has a far more active role in the running of the nation than was ever designed by the Founders or than was ever built into the Constitution.
The danger of the pardon, particularly as we push forward into an era of populism and fears about “national security” is that it is no longer used to serve as a corrective for an overactive justice system, but instead used within the executive branch to effectively make policy or take decisions without fear of reprimand. The Constitution never envisaged that the president would be a politician; in fact, the presidency was designed so that he would be exactly the opposite. The Constitution never took into account the explosion of staff members, the dramatic increase in the bureaucracy of the United States that the president controls. The broadness of the pardon is its undoing in the modern world – with no oversight at all, no limit on how many pardons a president might offer, and no real restriction on what crimes the president can forgive, this executive power now exists as a political tool to be wielded by the single most powerful actor in the US governmental system.
Placing a check within the legislature would nullify this excessive power to an important degree; it would allow us to construct consensus and to pardon when it is truly necessary.
What, then, is to be done with the pardon? The original purpose remains important; there is a need for clemency at times that the law would necessitate otherwise. For that to work effectively, however, the power of the pardon must be vested in a completely apolitical individual in the system, a disinterested person in the truest sense of the word. We may well say that such a person cannot be expected to exist, now, or indeed for the past two centuries. What is left, then? Can we rehabilitate the pardon to a degree that would make it acceptable in the modern system?
The most obvious method would be to add on restrictions at the Constitutional level – perhaps to extend either end of the sentence about the pardon. We could impose an explicit “public good” clause at the end to force the executive to justify the reason why they grant the pardon. This comes with its own set of problems. By codifying the terms within the Constitution, we would grant power of judicial oversight to the Supreme Court, since it determines the correct interpretation of the document. A check on the judiciary would thus be determined by the judiciary. The power of determining what qualifies as a public good would also weaken the position of the judiciary itself – unless it struck down every attempt by a president to use it, the Supreme Court would recognize that the laws it enforces and the decisions that it makes are fallible, which would bring into question the necessity of those laws in the first place. The reason for the breadth of the pardon and the lack of justification in Article II is to provide a defense against judicial intervention; any attempt to limit it would welcome the Supreme Court into the process.
The alternative is to change the source of the pardon entirely, to grant it to Congress instead. It might seem strange, even counter to the original purpose of the pardon to place it within the most political body of the US government, but doing so would allow something like consensus to determine the pardon. Perhaps even passing the pardon through a single house, much as the Senate does with ratification of nominations and treaties, would produce broad agreement across the political spectrum, while also removing the power from a single man. The president would continue to nominate those for pardoning, with the Attorney of Pardoning repurposed to attend special Senate hearings on pardoning and clemency. There is very clearly here a need to maintain the independence of differing powers, but the placing of the pardon within a single individual allows the subversion of one branch entirely by another, forcing us into a concession one way or another. Placing a check within the legislature would nullify this excessive power to an important degree; it would allow us to construct consensus and to pardon when it is truly necessary.
There is far more at stake in this question than the pardon. We might reasonably claim that public opinion would prevent a president going mad with power and corrupting the power entirely. That would be to miss the point, however; this is a question of best practice, not prevention of exploitation. The changes that have occurred within the United States in terms of demography, practice of politics, and even ideology, have not been replicated in the legal form of government. Some might claim that a move towards Congressional oversight of the executive branch would destroy the separation of powers and construct a presidency devoid of power entirely. The president as a figurehead is, ironically, closer to the ideals of the Founding than the active, populist role that it has assumed, particularly in the last century. Removing the unrestricted power of the pardon is the first step on the road to modernizing the presidency, bringing it in line with the modern organization of the United States.
Edward Green is a Kinder Institute Graduate Fellow in History at the University of Missouri.