Donald Trump abused the pardon power on his way out the door. This is not the first time Trump has handed out improper pardons, and he is not the first president to do so at the very end of his term. It is time to reform, if not entirely eliminate, the most monarchical of the president’s powers.
Throughout his tenure in office, Trump’s use of the pardon power has disproportionately offered leniency to the famous, the well-connected, and to his political supporters and friends, such as Joe Arpaio. He has frequently done an end run around the formal process that the Justice Department uses to vet potential pardon recipients. We have supported some of Trump’s past pardons of targets of political prosecutions, such as Michael Flynn and Scooter Libby. We are relieved that Trump resisted calls to pardon Edward Snowden or Julian Assange and, apparently, to pardon himself. But that does not excuse the latest list of eleventh-hour pardons.
Trump’s newest pardons and commutations include a bipartisan rogue’s gallery of people who are rewarded for their prominence or their usefulness to Trump rather than for any injustice done to them: Steve Bannon, Albert Pirro (the ex-husband of Fox News host Jeannine Pirro), former Trump fundraiser Elliott Broidy, former Republican congressmen Duke Cunningham and Rick Renzi, Trump-endorsing rapper Lil Wayne, and former Democratic mayor of Detroit Kwame Kilpatrick. Several of the pardon recipients were convicted of crimes of political corruption or espionage. Bannon, one of the least deserving recipients, was under indictment for fleecing Trump’s own grassroots supporters with a fraudulent “build the wall” nonprofit.
The pardon power is especially prone to misuse when a president is done facing the voters and is on his way out the door. Bill Clinton’s late pardon of the fugitive Marc Rich and his prior clemency offer to Puerto Rican FALN terrorists are the most infamous examples. Andrew McCarthy has argued for abolishing the pardon power entirely, given the vast expansion of federal offenses since the Founding. Other proposals would include a congressional override, limits on pardons late in a president’s term, or an explicit ban on presidents pardoning themselves, their families, or in some cases, their co-conspirators. Any such reform would require a constitutional amendment, but this is a problem of genuine bipartisan concern, and it would be a healthy development to revive the amendment process for such a purpose.
While the memory of Trump’s pardons is fresh and there is no imminent prospect of pardons from the new president, Congress should give serious consideration to an amendment that would limit abuse of the pardon power by future presidents.