Pardons

[Jonathan Buhacoff]

Intent

To have the ability to pardon convictions in special circumstances while preventing the abuse of such an ability.

Proposal

The federal legislature may enact pardons for extant federal court convictions with a two thirds majority vote. A pardon shall not be issued in exchange for money or favors or in response to any threats to any elected or appointed official in any branch of the federal government. A pardon shall not be issued for charges of election interference.

A state legislature may enact pardons for extant state court convictions with a two thirds majority vote. A pardon shall not be issued in exchange for money or favors or in response to any threats to any elected or appointed official in any branch of the state government. A pardon shall not be issued for charges of election interference.

A pardon certificate must state the name of the person being pardoned and the charges or penalties being pardoned for that person. The pardon does not eliminate the conviction on the charges or any penalties already applied such as imprisonment or community service, but it cancels any remaining court-imposed penalties including imprisonment and fines. The pardoned person’s criminal record is updated to indicate the charges that were pardoned with the date of the pardon. The pardon does not affect any revocation of professional licenses — such a license may be revoked before or after a pardon on the basis of the conviction and is not affected by the pardon because it is an action of a separate government agency, not of the court.

Soliciting pardons in exchange for money or favors shall be a felony misdemeanor. Blackmail, coercion, or extortion in pursuit of a pardon shall be a felony misdemeanor.

Discussion

In the United States, the President has the power to pardon people convicted of federal crimes. This is a balance to the power of the Judicial Branch, to be used in exceptional cases when the President believes that the country or the cause of justice is better served by a person not serving their sentence.

However, there are flaws with this approach, which this proposal would correct. Here are 11 flaws with the current presidential pardon power and how this proposal corrects them:

1. The President is not currently prohibited from issuing a self-pardon. A self-pardon is obviously unethical because one of the pillars of ethical government is not using public office for private gain. A self-pardon ability makes the executive completely immune from breaking the law. A president with control over law enforcement and a self-pardon ability could do anything without any accountability by the Legislative Branch or the Judicial Branch, including murdering all the judges and blowing up the legislature, issuing a self-pardon for those crimes with some platitudes about how this is best for the nation, and then declaring himself or herself a dictator. A self-pardon power also creates the possibility that the Vice President will murder the President, thereby becoming President due to the line of succession, and then pardoning himself or herself for the treasonous crime. Moving the pardon power to the legislature eliminates this possibility because a two-thirds vote means neither the President nor any legislator can issue a self-pardon.

2. The President is not currently prohibited from issuing a pre-emptive pardon. Moving the pardon power to the legislature and requiring that the power only applies to extant criminal convictions prevents the legislature from issuing pre-emptive pardons.

3. The President is not currently prohibited from issuing a mass pardon. Moving the pardon power to the legislature and requiring that the person or persons being pardoned must be named eliminates this possibility of mass pardons where it’s not clear to whom they apply and invites the possibility of people claiming it applies to them and then putting the decision in the hands of a judge instead of with the legislature that has the power.

4. The President is not currently prohibited from corruptly selling pardons or issuing quid pro quo pardons. Moving the pardon power to the legislature and specifically prohibiting the exchange of money or favors for pardons prevents this problem because it forces such as corrupt scheme to target a large number of people, greatly increasing the chances that some of them will refuse the offer and report the attempt, causing the scheme to fail and the perpetrator to be prosecuted.

5. The President may be blackmailed, coerced, or extorted to issue a pardon to someone who has some ability to hurt or embarrass the President. Moving the pardon power to the legislature and specifically criminalizing such attempts prevents this problem because it forces such a criminal scheme to target a large number of people, greatly increasing the chances that it’s not possible to find such leverage on all of them and that at least one of them will report the attempt, causing the scheme to fail and the perpetrator to be prosecuted.

6. A corrupt President may be inclined to pardon his or her associates such as staff, appointed officials, corrupt allies in other branches of government, or criminal associates who are not in government. The President is the chief law enforcement officer so it is absurd to allow such an officer to wield a tool that facilitates corruption. Moving the pardon power to the legislature eliminates this possibility because if any legislators are aware of or participating in a President’s corrupt schemes, it would not be two thirds of the legislature. In other words, if two thirds of the legislators are corrupt, we have much bigger problems.

7. A President may be inclined to pardon his or her friends and family for crimes committed before or during the President’s term, which were either unrelated to the presidency or possibly part of a criminal conspiracy involving the President. Moving the pardon power to the legislature prevents this possibility because such pardons would be fiercely debated and are unlikely to get a two thirds majority — and if they do then it can be considered the will of the people, and at least it’s not just one person deciding the fate of their own friends and family because it’s an unethical situation where the decision-maker is obviously biased. This proposal is better than attempting to impose a friends and family or associates restriction on the President’s pardon power because such things can always be argued — someone may be disowned, divorced, an in-law, etc. and we can eliminate the ethical issue entirely by moving the power to the legislature.

8. In the United States, the constitution only prohibits a pardon in cases of impeachment but this is very weak protection because if the legislature chooses not to impeach, or impeaches but the Senate not convict, or if the president disrupts the legislature illegally to disrupt the impeachment proceedings, the president can still pardon someone or issue a self-pardon. Also it can cause people to make bad arguments like the legislature shouldn’t impeach because the courts will handle a trial and conviction, and dropping the ball completely. Moving the pardon power to the legislature eliminates this problem because the legislature then has the range of options to impeach someone for offenses and then let the courts possibly try and convict them, and if later the legislature agrees the convictions were unnecessary or the sentence too onerous the legislature can issue a pardon. And because of the way the legislature works, such actions need to be more closely aligned with the will of the people, whereas a president with a pardon power can act alone and diverge from the will of the people who elected that president.

9. In the United States, Presidents may issue many pardons immediately before leaving office. This is cowardly because it intentionally avoids any political consequences for the president. If someone should be pardoned, it should happen at the earliest opportunity and not when it’s politically convenient for the President. This was exemplified by President Joe Biden pardoning his son Hunter Biden just weeks before the end of his term, even though Hunter Biden was convicted months earlier, and President Trump pardoning Albert J. Pirro, Jr. just minutes before President Joe Biden was inaugurated in 2021. Moving the pardon power to the legislature eliminates this problem because the legislature is always considering and voting on things, and a pardon is just one more thing on the list and not especially more precarious for a legislator than any other thing they vote on. This proposal is better than attempting to prohibit a President from issuing a pardon at the end of the term or after voting starts for an election because it eliminates the problem entirely.

10. In the United States, a President can only pardon crimes for which people have been convicted by a federal court, meaning the President cannot issue pardons in advance and cannot pardon state or local crimes. That didn’t stop President Donald Trump from pretending he had that power and attempting to pardon Tina Peters for state crimes in 2025. Moving the pardon power to the legislature and explicitly stating that the federal legislature can only pardon federal crimes and a state legislature can only pardon state crimes would eliminate this problem entirely because an act of the legislature can be challenged in court when it’s unconstitutional, whereas there is no mechanism in the constitution currently to challenge a presidential pardon.

11. If a group of people conspire to subvert the democratic process and unjustly influence the results of an election, the President can pardon everyone in the group, even if the President himself or herself was elected as a result of that subversion. This proposal eliminates this possibility because the federal legislature is comprised of elected representatives from all the states, so unless the election manipulation was country-wide and completely effective, not all of the legislatures will be the beneficiaries of such subversion. Furthermore, the explicit prohibition on pardoning people convicted of election interference means that such a pardon by a legislature can be challenged in courts as being unconstitutional.

References:

* [Trump vs United States 2024](https://en.wikipedia.org/wiki/Trump_v._United_States)
* [Tina Peters (Politician)](https://en.wikipedia.org/wiki/Tina_Peters_(politician))
* [Hunter Biden](https://en.wikipedia.org/wiki/Hunter_Biden)

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