The Constitution endows the president with the “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  This power allows a president to ensure that “inflexible adherence” to the law does not itself become a source of injustice.  Presidents have also used pardons to heal national wounds, as George Washington did with the first pardons granted to Whiskey Rebellion participants convicted of treason and as Gerald Ford and Jimmy Carter did by issuing amnesties to draft law violators from the Vietnam era. By giving the president exclusive authority to exercise the pardon power, the Founders believed it would “naturally inspire scrupulousness and caution.”  To ensure such “scrupulousness and caution,” and to prevent abuse, for over a century, presidents have voluntarily adhered to an established process for considering prospective pardons, overseen by the Department of Justice’s Office of the Pardon Attorney.  Under this process, the pardon attorney reviews pardon applications and makes written recommendations to the president based on published pardon guidelines.  The guidelines reflect the values of mercy and justice, and require consideration of factors including the applicant’s post-conviction conduct, the extent to which the applicant accepted responsibility for their crime, how long ago the crime took place, and the seriousness of the offense.  Although the president remains free to ignore the pardon attorney’s recommendations, this process ensures that all pardon applications are assessed in the same way without regard for the president’s personal or partisan political interests.  Controversy has arisen primarily when presidents have deviated from this standard process.  There are, unfortunately, several recent examples of such controversial pardons.  Some pardons were criticized as inappropriate favors to donors or benefactors, like President Clinton’s pardon of financier Marc Rich or President George W. Bush’s pardon of real estate developer Isaac Toussie.  In fact, President Bush immediately rescinded the pardon following press reports that Toussie’s father had donated tens of thousands of dollars to Republicans.  Other pardons were criticized as favors for former colleagues, like President George W. Bush’s commutation of the prison sentence of Scooter Libby (former chief of staff to his vice president, Dick Cheney), or President George H.W. Bush’s pardon of former officials involved in the Iran-Contra affair.  Reports that President Trump has considered pardons for two former members of his campaign, Michael Flynn and Paul Manafort, have also drawn criticism, not only because these are his former associates.  Flynn and Manafort are potential witnesses in an investigation that may implicate the president, and the floating of pardons is seen by some as an attempt to lure positive testimony, thereby obstructing justice.  While it is certainly an abuse of the pardon power to use it to advance one’s self-interest, that does not mean that Congress can or should try to limit the president’s power to make pardon determinations.  Nor do we think it wise for Congress to try to restore longstanding safeguards by requiring the president to consult with the pardon attorney before making pardons.  Instead, we propose a much more limited measure designed to increase transparency around the exercise of the pardon power in cases raising legitimate questions.

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Specifically, Congress should pass legislation requiring the president, in a small subset of cases, to explain his or her decision for pardons or grants of clemency in a written report to the House and Senate Judiciary Committees.  To minimize any burden on the president, the reporting requirement should apply only in cases where the individual seeking a pardon has a close personal, professional, or financial relationship to the president — a family member, business partner, current or former employee or professional colleague, or political contributor — or to the president’s spouse, close family member, or business associate. In courts, similar relationships typically warrant recusal by a judge.  The report should address whether and how the president considered the factors historically used by the pardon attorney in evaluating requests.  This legislation would provide the public with some confidence that the pardon power is being used to further justice, rather than to favor presidential allies or to reduce the president’s own criminal liability.  At the same time, it would create an avenue for political accountability for abuse of an otherwise unchecked authority.  And it would provide Congress with an opportunity to respond to abuse if the president flouts the reporting requirement.  There is ample support and precedent for greater transparency in the pardon process.  From 1885 to 1932, presidents submitted detailed reports to Congress about pardons and clemencies they had granted, which included, in many (if not most) instances, some explanation for the grants.  These reports even noted if there were disagreements between the president and the pardon attorney or the attorney general and whether the applications did not go through “normal channels.”  Even without a mandatory reporting requirement, some recent presidents have felt compelled to explain their use of the pardon power.  Reporting requirements are also in place in at least 14 states, which require governors to provide reasons for each use of their pardon authority.  There are currently at least three bills pending in Congress that aim to increase the transparency and prevent abuse of the pardon power.  We do not believe that this limited reporting requirement would unduly burden the executive branch.  There have been on average only 193 acts of clemency a year going back to 1900.  Only a minute number of these would be subject to the reporting requirement. Indeed, at least one former U.S. pardon attorney has called for a return to the pre-1933 policy of reporting to Congress on all grants of clemency, though we do not believe we need to go that far.  In short, the risk of added burden is far outweighed by the accountability that further transparency would bring.

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Finally, analogizing from other reporting requirements Congress has imposed on the president, such as reporting to Congress the reasons for removing inspectors general (in the Inspector General Act) or making White House documents available to Congress (in the Presidential Records Act), we believe that such a reporting requirement is within Congress’s constitutional authority.  Requiring a president to state the reasons for granting pardons in limited instances does not control or limit the president’s ability to grant a pardon.  And it helps Congress enforce other constitutional provisions and better exercise its powers.