We’ve all had enough. An amendment is hard but inevitable. My column today in the Pittsburgh Post-Gazette.

Bruce Ledewitz: It’s time to stop presidents from abusing the power to pardon

Special to the Post-Gazette

Feb 10, 2025

5:30 AM

Bill Clinton was accused of selling a pardon. Joe Biden tried to put a legal cocoon around his family. Donald Trump granted clemency to police assaulters and at least one identified drug dealer.

Had enough?

It’s time for Republicans and Democrats to come together to pass a constitutional amendment curtailing the President’s pardon power.

Restraining the president

Official expressions of dissatisfaction with an unlimited executive clemency authority are not unusual in the American experience. By state constitutional amendment, Pennsylvania, for example, has limited the governor’s powers of pardon and commutation to recommendations to a Board of Pardons.

The Pennsylvania Pardon Board is composed of the Lt. Governor, the Attorney General, and three appointed members, with terms of six years. One of the appointed members must be a crime victim, one a person with medical expertise and one a corrections expert.

Most of the board’s actions are decided by majority vote, while those involving sentences of death or life imprisonment must be unanimous. The governor retains the power of granting reprieves.

We could easily do something like this to restrain the president.

The federal Constitution is one of the hardest constitutions in the world to amend. This is the reason that proposed constitutional amendments generally go nowhere.

But a pardon amendment would be different because both parties agree that the pardon power has been abused. Many members of both parties even agree, at least in private, that their own presidents have abused it.

There are plenty of Democrats critical of Biden’s pardon of his son and plenty of Republicans unhappy with the presidential pardons and commutations of violent protestors on Jan. 6.

Everyone can now see that we are at the point where a president might try to order the illegal assassination of a foreign figure, or even a domestic enemy, by secretly granting a preemptive pardon to the shooter.

That is a crazy place to be.

An inevitable amendment

It is going to take a few years, but a pardon amendment is inevitable. Because this is a proposed constitutional amendment, the usual constitutional restrictions on appointments would not apply to the Pardon Board. There would be no need to involve the president or the Senate. Therefore, there can be some creativity in structuring a National Pardon Board in a way that mostly avoids partisanship and ideological prejudice.

Here are some suggestions for the amendment.

The Pardon Board should not have the capacity to act independently. A pardon or commutation should have to be initiated by the President. On the other hand, no pardon or commutation should be effective until approved by a majority of the Board.

Like the Pennsylvania Governor, the President should retain the reprieve power.

By avoiding Presidential appointment, the Board would be non-political, at least insofar as that is possible in our system. Right now, the pardon process is completely partisan, with only persons friendly to the President having much of a chance at pardon.

Members of the Pardon Board should be appointed, instead, by respected, non-partisan institutions, like the Conference of Chief Justices, which brings together the State Supreme Court Chief Justices, the AMA, The National Center for Victims of Crime, the Academy of Criminal Justice Sciences, and so forth. Certainly, the Attorney General, representing the views of the president, should also be a member.

A structure like this is going to make pardons and commutations rare and individual. That is all right. They are supposed to be.

A Pardon Board would remove pardons from direct involvement in politics. A president would not be able to use the pardon power to express hostility toward existing law, as Biden did with his commutations of death sentences and Trump did with regard to convictions for protests at abortion clinics.

Nor would campaign contributions any longer be a factor. Of course presidents would still be tempted to recommend clemency for friends and supporters, but no hard-headed supporter would bother to contribute large sums of money to a candidate for office with only the promise of a recommendation for clemency. 

If it becomes obvious over time that the Pardon Board applies professional standards for clemency, people would have much less motivation to try to buy a presidential recommendation and presidents much less ability to offer them.

A non-political process

Another factor encouraging a non-political process with a Pardon Board is that its timeframe for action, and capacity for action, transcends presidential terms. Presidents can recommend large numbers of pardons and commutations, triggered by the looming end of the president’s term.

But the Board would presumably act more deliberately, with each case being considered on its own merits. By the time a decision is reached, there might be a new President.

A Pardon Board would not be precluded from mass actions, but they would probably be conditioned on particular circumstances. There might be an argument for mass commutation for those convicted if Congress repeals a criminal statute, for example.

A lot of things are broken in America. The pardon power is just one. But unlike most of our problems, the pardon problem is one that can fixed by relatively easy, bipartisan action.

Bruce Ledewitz is a professor of law at the Thomas R. Kline School of Law of Duquesne University. His previous article was “Donald Trump’s an autocrat, but he succeeded an autocrat.” The views expressed do not represent those of Duquesne University.

First Published: February 10, 2025, 5:30 a.m.