The Pardon Power: Don’t Mend It, End It

P resident Biden’s abuse of power in pardoning his son has sparked a debate we have every four or eight years.

Thanks to Hunter Biden’s need for clemency before the start of his sentencing next week — i.e., as I discussed on Monday, thanks to his and his father’s desire that he not become, formally, a convicted felon — we’ve gotten a jump on pardon season, which customarily happens during the Christmas holidays. And we’ve gotten a very early start of scandalous pardon season, which customarily happens at the very end of a term-limited or failed presidency, when the opposition party has won the election so the incumbent has no concerns about political repercussions — as a president would if his or her own party was poised to remain in power.

The occasion for our last hand-wringing over pardons was, naturally, the end of the Trump presidency, when Democrats were hysterical mostly over the possibility that the president might pardon himself. There were some shameful pardons but no self-pardon, much to the relief of these crusaders against self-dealing who — mirabile dictu! — seem less agitated over Joe Biden’s pardon of his son, just as they were notably muted when Bill Clinton pardoned his brother Roger (in addition to pardoning one of the FBI’s most wanted fugitives and Democratic mega-donor Marc Rich . . . and, of course, granting clemency to a couple of Weather Underground terrorists, who paired nicely with the FALN terrorists whose sentences Clinton had previously commuted).

The Constitution’s pardon power is a vestige of a bygone time when there were few federal crimes, it having been assumed at the Founding that law enforcement would remain primarily a state responsibility (the states have pardon processes — in most, clemency may be granted by the governor). Back in early 2021, when we were pondering prospective Trump pardons, I argued in an essay in National Review magazine that the pardon power should be repealed (it was published the day after the Capitol riot, though written before).

My piece traced the history of presidential pardons (the authority for which is Article II, Section 2 of the Constitution) in light of Hamilton’s wisdom. In the republic’s infancy, its survival was far less certain than it is today. Hamilton thus urged (in Federalist No. 74) that “the benign prerogative” could be invoked in “seasons of insurrection or rebellion” because “there are often critical moments when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”

Washington used the power this way after the Whiskey Rebellion (ironically, to Hamilton’s consternation). Lincoln used it as part of his approach to reunifying the nation, and Andrew Johnson followed in 1868 with a sweeping pardon for former Confederate forces. After World War II, Truman pardoned around 1,500 conscientious objectors, and after Vietnam, Carter pardoned 200,000 draft dodgers. The most famous pardon in modern history, Ford’s pardon of the resigned, nearly impeached Nixon, was also guided by the objective of national healing, even if it wasn’t exactly a “season of insurrection or rebellion.”

But that’s not how the pardon power is used anymore.

I need no convincing that the quality of mercy is not strained. I am not against grants of clemency; I am against the endowment of unilateral power in the president to grant clemency in modern times. It is unnecessary to achieve the noble purpose of correcting the injustice of an unfair investigation, a dubious conviction, or an unduly harsh sentence.

Today, the pardon power is more often invoked scandalously, further dividing the nation rather than seeking to heal it. Modern clemency grants are indicative of corruption, self-dealing, cronyism, bribery (Clinton’s Rich pardon), preening for the base (e.g., Clinton’s and Obama’s clemency for violent left-wing radicals; Reagan’s clemency for FBI officials who broke the law while investigating left-wing radicals), or accomplishing unconstitutional ends (Obama’s mass commutations of drug sentences when he couldn’t get Congress to legislate amendments of the drug laws).

Nowadays, presidents head executive branches that are more likely to cause miscarriages of justice than ameliorate them. There is no need for a president to have unilateral pardon power because, if there is national consensus for some grant of clemency, it can be accomplished by legislation. You might counter that Congress will rarely address individual cases; but it would address them more often if a president had to get congressional approval for a pardon — which would discourage presidents from seeking corrupt pardons.

If the president’s pardon power were repealed by a constitutional amendment, it would not be necessary to further alter the Constitution to add a congressional clemency role; Congress can, and has, enacted legislation enabling people who claim to have been unlawfully convicted or unreasonably sentenced to seek redress.

That brings us to our governing system’s most significant development. The elaborate criminal justice system we now have is so night-and-day different from what existed at the Founding as to have been unimaginable. I put it this way in the early 2021 essay:

Federal jurisprudence has yielded a revolution in the due-process rights of criminal defendants and in Eighth Amendment protections against cruel and unusual punishments. Death sentences are nearly unheard of and, despite a spurt in the last year, will return to dormancy with Joe Biden’s inauguration [and, indeed, there have been no executions during the Biden years]. The robust federal court system, furthermore, provides for multiple levels of direct appeal, then seemingly endless collateral appeal (habeas corpus). Might we still encounter a gross miscarriage of justice that’s incapable of being reversed? Yes, but the chance of that has been drastically reduced in today’s legal system. On the rare occasion when a correction is needed, the courts are far more likely than a president to proceed fairly.

Moreover, since their inception in the 1980s, the federal sentencing guidelines have substantially succeeded in enforcing uniformity in sentencing for similarly situated defendants. Though the guidelines are advisory, judges usually follow them. Formerly, the system was sullied by disparate sentences based on the proclivities of the judge rather than on the nature of the offense or the recidivism of the offender. Now, sentencing is more just. And while plea-bargaining undeniably raises the conviction rate, defendants benefit from reduced charges and diversion from prison sentences.

The number of cases in which clemency grants might be appropriate to address true injustice is vanishingly small. Again, these can be handled by legislation, and Congress has, in fact, acted in this field. For example, Section 3582(c) of the federal penal code provides for various avenues of humanitarian release from custody.

The theory of our system of government is that when too much power is accumulated in one set of hands, human nature leads to its abuse. Therefore, we divide power, with the federal branches checking and balancing each other to promote liberty and justice for all. There are certain situations when unilateral executive power is vital — for instance, if the nation is under attack or the imminent threat of attack, the president must be able to act swiftly and decisively. But a miscarriage of justice in our elaborate judicial system, with its redundant layers of review, is never going to present that sort of exigency.

The pardon power is an anachronism. It should be repealed.