Essay

Pardon Me? Reconciling The Pardon Power with Traditional Notions of Checks-and-Balances

By Marriam Shah

Article II, Section 2 of the United States Constitution confers upon the president the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”[i] The pardon power is broad, allowing the president to “release[ ] the offender from any punishment for her crime.”[ii] It “vitiates moral guilt for the offense, so that in the eyes of the law [the accused] is as innocent as if she had never been charged or convicted.”[iii] This absolute power is not subject to the limitations of a traditional checks-and-balances system.[iv] A president cannot be limited in his or her ability to pardon by the judicial process or by congressional decree.[v] This raises an important issue: who is holding the president accountable?

To address this issue of accountability, we must first understand the pardon procedure. The Department of Justice outlines the procedure on its website.[vi] This procedure demonstrates the breadth of the president’s power and emphasizes how the decision to pardon is unilaterally vested in the office of the president alone.[vii]

An individual may submit a petition for pardon to the Department of Justice through the Office of the Pardon Attorney.[viii] After submitting a petition, there is a waiting period,[ix] although the Department of Justice or the president may waive this period.[x] The petitioner should disclose information relating to his conviction and explain his reasoning for seeking pardon. The process also asks the petitioner to submit letters of recommendation.[xi] Upon submission of these materials, the petitioner endures the waiting process.

This pardon process is not appealable.[xii] Once the president has made a decision, it is final.[xiii] This procedure is not constitutionally mandated. It may be waived at any time subject to the discretion of the president.[xiv] Thus, while the pardon power can filter through the Office of the Pardon Attorney and the Department of Justice, complete deference is given to president.[xv]

At first glance, there appears to be no way to inject accountability into the pardon process without subjecting the power to limitations not prescribed by the Constitution. However, the Department of Justice, by way of the Office of the Pardoning Attorney, can chose to implement meaningful checks on the pardon power which would enable the American people to hold the president accountable.

The Department of Justice can implement a system similar to the Notice and Comment requirement as outlined under the Administrative Procedure Act (APA).[xvi] The APA authorizes federal agencies to promulgate rules.[xvii] The federal agency is then required “to provide public notice and an opportunity for comment on any proposed rule.”[xviii] While this process is lengthy, it gives the public an opportunity to comment on a proposed rule, and gives the agency an opportunity to respond to comments. The notice and comment requirement facilitates a dialogue between interested citizens and the federal government.

The Department of Justice could arrange a similar system to grant citizens a specific forum to voice their concerns regarding forthcoming pardons. This would be an easy solution to implement because the Executive branch and administrative agencies already know how to administer notice and comment periods. Citizen concerns regarding a pending pardon could be compiled and summarized for the president. Therefore, the president would have to hear the voices of the people, even if the president is not required to respond. This process would not be a material limitation on the pardon power, but it would facilitate a dialogue between the president and the people before a pardon is granted.

The implications of this potential process would bring us closer to a solution for the problem of accountability. While this process does not have a direct response mechanism, Americans would indirectly hold the president accountable for controversial pardons. As a result of the proposed notice and comment requirement, the president would be made aware of the sentiment surrounding a potential pardon. Thus, if the president grants a controversial pardon during his first term in office against the wishes of the American people, then the president may face the consequences of this decision when campaigning for a second term.[xix]

Even if the president grants a pardon and is not seeking re-election, the president’s political party could be faced with the ramifications of a controversial pardons. The American people could choose to withhold votes from the president’s party, signaling their disapproval of the pardon decision.

Both of these mechanisms of accountability encourage the president to take into account citizen opinions prior to granting a pardon. In the first instance, the president risks facing voter backlash for a controversial pardon in an upcoming election. In the second instance, members of the president’s political party potentially face similar ramifications in an election year. Both circumstances could prevent the president from granting a contentious pardon.[xx] The president may be encouraged to take into consideration the opinions of vocal, concerned constituents. The alternative may cost him and his party a second term.

This is but one solution to impose checks-and-balances on the pardon power. Given all of the pomp surrounding the pardoning of a turkey every Thanksgiving, the American people deserve equal, if not more consideration, when their president pardons an accused criminal.

 


[i] U.S. Const. art. II, § 2. Justice James Moore Wayne defined the pardon power as “forgiveness, release, remission.” William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 507 (1977). He further noted that historically, “a pardon [was] . . . a work of mercy, whereby the king, either before attainder, sentence, or conviction, or after, forgiveth any crime, offense, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical.” Id.

[ii] Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex. L. Rev. 569, 576 (1991).

[iii] Id.

[iv] See Todd David Peterson, Article: Congressional Power Over Pardon & Amnesty: Legislative Authority in the Shadow of Presidential Prerogative, 38 Wake Forest L. Rev. 1225, 1228 (2003) (noting that the pardon power is “unchecked”).

[v] Id.

[vi] Pardon Information and Instructions, U.S. Department of Justice (November 4, 2016), https://www.justice.gov/pardon/pardon-information-and-instructions [hereinafter Pardon Information].

[vii] Id.Brian M. Hoffstadt, Article: Normalizing the Federal Clemency Power, 79 Tex. L. Rev. 561, 579-580 (2001) (While the President may grant clemency independent of the Pardon Attorney process, such grants are rare (particularly as a matter of error correction), and the regulations and statistics maintained by the Pardon Attorney provide a useful insight into the efficacy of the clemency process as a means of remedying claims of factual and legal error.”).

[viii] 28 C.F.R. § 0.35. Duties of Office of Pardoning Attorney.

[ix] Pardon Information.

[x] Id.

[xi] Id.

[xii] See Pardon Information, supra note 6.

[xiii] Id.

[xiv] Id.

[xv] Id. (“The power to grant pardons is vested in the president alone.”); see also Hoffstadt,supranote 7 at 568 (“President Clinton’s grant of clemency to the FALN prisoners, for example, was processed independently of the Pardon Attorney mechanism.”).

[xvi] 79 P.L. 404, 60 Stat. 237, 79 Cong. Ch. 324, 79 P.L. 404, 60 Stat. 237, 79 Cong. Ch. 324 (stating that “Section 553 of the Administrative Procedure Act (APA) generally requires a federal agency to provide public notice and an opportunity for comment on any proposed rule”).

[xvii] Brian Wolfman and Bradley Girard, Argument Preview: The Administrative Procedure Act, Notice-and Comment Rule Making, and “Interpretive” Rules, SCOTUSblog, (Nov. 26, 2014), http://www.scotusblog.com/2014/11/argument-previewthe-administrative-procedure-act-notice-and-comment-rule-making-and-interpretive-rules/ (“the APA defines ‘rule making’ as the process ‘for formulating, amending, or repealing a rule’”).

[xviii] Id.

[xix] Few presidents grant pardons during their first term in office. Samuel E. Schoenburg, Note: Clemency, War Powers, and Guantanamo, 91 N.Y.U. L. Rev. 917, 952 (2016) (“[T]he lame-duck period may present the best opportunity to [pardon]. The President would still be imbued with constitutional authority while freed of political pressures usually attendant to the presidency.”); see also President Obama’s Pardons, U.S. Department of Justice (August 30, 2017), https://www.justice.gov/pardon/obama-pardons (showing that the vast majority of President Obama’s pardons were done during his second term). But see Olivia B. Waxman, How President Trump’s Pardon of Joe Arpaio Breaks With White House History, Time (August 29, 2017), http://time.com/4876374/donald-trump-joe-arpaio-pardons-history/ (noting that President Trump’s pardon of Joe Arpaio is unique for many reasons, including the fact that it took place so early in the presidency).

[xx] See generally Kelly Swanson, Trump Denies using Hurricane Harvey to Hide his Pardon of Joe Arpaio, Vox (August 28, 2017) https://www.vox.com/policy-and-politics/2017/8/28/16217834/trump-hurricane-harvey-pardon-of-joe-arpaio (stating allegations that President Trump used natural disaster to mask a hasty and controversial pardon).