The following is the opinion and analysis of the writer:
Wade Thompson
The American Founders envisioned the Presidential pardon as a "benign prerogative" — a safety valve for mercy to correct the occasional harshness of the law. Alexander Hamilton, in Federalist No. 74, argued that a single hand should hold this power to ensure "humanity and good policy." Yet, in an era of hyper-partisanship and expanding Executive reach, what was designed as a tool for justice has increasingly been wielded as a shield for corruption. To preserve the principle that no one is above the law, we must establish common-sense limits on the Presidential pardon.
The problem of 'self-dealing' pardons
The most glaring vulnerability in the current system is the potential for self-dealing. The Constitution grants the President "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." While this language is broad, it was never intended to allow a President to obstruct justice by pardoning co-conspirators or, most controversially, themselves.
When a President dangles pardons before witnesses to prevent cooperation with investigations or rewards political allies who committed crimes that benefited the administration, a pardon ceases to be an "act of grace." Instead, it becomes a tool for institutionalized impunity. This "henchman's pardon" undermines the Judiciary's ability to uncover the truth and holds the Rule of Law hostage to executive whim.
While the pardon power was designed for mercy, modern history is littered with examples that look more like political patronage than justice. The following cases illustrate how the power can be used to bypass the justice system, reward loyalty, or protect family and allies.
— In the final hours of his presidency, Bill Clinton issued a flurry of pardons that drew bipartisan condemnation, notably financier Marc Rich and Clinton’s brother, Roger.
— Barack Obama’s use of clemency was largely focused on non-violent drug offenders, but several high-profile commutations sparked furor, including that of Oscar Lopez Rivera, a convicted FALN terrorist.
— Joe Biden shattered norms by both pardoning his son, Hunter, after vigorously promising he wouldn’t and giving blanket prospective pardons for any crimes that might have been committed by family and political friends.
— Donald Trump has pardoned cronies and family and all of the January 6th defendants, even those who committed political violence and assaulted police officers. He has also given more than the appearance of enriching himself through the exercise of the pardon power.
These examples, spanning decades and parties, suggest that the problem isn't a specific individual, but the absolute nature of the power itself. When a President can pardon anyone — from a fugitive donor to a criminal son or a political "fixer" — the legal system ceases to be a level playing field.
Restoring the balance
Reforming the pardon power does not mean stripping the President of the ability to show mercy to the deserving. Rather, it means installing guardrails to prevent the most egregious abuses.
Therefore, I propose a novel Constitutional amendment for reform. By involving lead public defenders — who are traditionally tasked with protecting the rights of the indigent and ensuring the fair application of the law — this amendment would create a "civil liberties" check on Executive power rather than a purely political one.
Proposed Amendment to the Constitution of the United States
• Section 1. The power of the President to grant Reprieves and Pardons for Offenses against the United States, as provided in Article II, Section 2, shall be subject to the advice and consent of the State Public Defense Authorities.
• Section 2. No pardon or reprieve shall take effect unless it is approved by a majority vote of the Lead Public Defenders (or the equivalent principal officer of the primary state-level indigent defense agency) of each of the several States.
• Section 3. The Congress shall have the power to provide by law for the procedures of such a vote, including the designation of the appropriate state official in states where no single Lead Public Defender exists, and the timeline by which such a vote must be conducted.
• Section 4. This amendment shall not apply to pardons or reprieves granted prior to its ratification.
A government of laws, not men
Critics argue that any limit on the pardon power would weaken the Executive and violate the separation of powers. However, the separation of powers was designed to prevent the concentration of absolute authority in one branch. When the pardon power is used to insulate the Executive from criminal accountability, it doesn't uphold the Constitution — it subverts it.
The integrity of our justice system relies on the belief that the law applies equally to all. If the pardon power remains an unchecked "absolute," it risks becoming a permanent loophole for the powerful. By codifying limits, we are not abandoning the virtue of mercy; we are ensuring that mercy is never traded for silence or sold to the highest bidder.
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