ROADMAP FOR RENEWAL 
Codify Additional Checks to Constrain Abuses of Executive Power  
 
IX. Limit Abuse of the Pardon Power 
 
According to​ ​Federalist Paper​ No. 74​, the Founders gave the President the pardon power to 
enable relief in circumstances where “​justice would [otherwise] wear a countenance too 
sanguinary and cruel.​”1 ​Yet the pardon power is not unlimited and is open to abuse without 
Congress acting to deter and ensure accountability for unlawful or abusive pardons.   
 
Congress should: 
● Enact legislation to enable Congress to step in if a corrupt or abusive pardon 
interferes with certain Department of Justice investigations or prosecutions;   
● Codify the requirement to appoint a private attorney when the Department of 
Justice drops an investigation or prosecution because of pardons that interfere with 
courts ability to uphold people’s constitutional rights or improper self- or 
self-protective pardons; and  
● Enact a resolution reiterating that bribery and obstruction laws apply to issued or 
offered pardons. 
 
The Problem 
 
The pardon power, while broad, is not absolute. President Trump has used or threatened to 
use the pardon power in three ways that contravene and undermine the rest of the 
Constitution. While in the past concerns about political blowback or shame largely 
prevented such abuses, President Trump’s approach to the pardon power suggests that is 
no longer the case.   
 
Three types of pardons violate the broader constitutional structure as well as the purpose of 
the pardon power as described in Federalist 74:  
 
Pardons that place the President and his allies above the law.​ ​Self-pardons (and similarly 
self-protective pardons) contradict the core American legal principle that no one is above 
the law. The executive branch has issued its own ​legal analysis​ that arrives at the same 
conclusion: “Under the fundamental rule that no one may be a judge in his own case, the 
President cannot pardon himself.”2 A self-protective pardon is one in which the President 
offers or grants a pardon in an investigation in which the President, his family, his 
campaign, or his business is a potential target for purpose of protecting himself. ​This type 
1

Alexander Hamilton,​ The Federalist Papers: No. 74​, (March 25, 1788), Available at 
http://avalon.law.yale.edu/18th_century/fed74.asp  
2
Mary C. Lawton, ​Memorandum Opinion for the Deputy Attorney General ​(August 5, 1974), Office of Legal 
Counsel, Available at 
https://www.justice.gov/sites/default/files/olc/opinions/1974/08/31/op-olc-supp-v001-p0370_0.pdf​.  

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 of self-protective pardon is unconstitutional given that ​a self-protective pardon 
achieves the same corrupt goal as a direct self-pardon by allowing the President to be judge 
and jury in his own case.  
 
Pardons undermining judicial power and the Bill of Rights. ​When President Trump 
pardoned Arizona Sheriff Joe Arpaio for criminal contempt of court, he neutered the court’s 
authority to enforce its own orders. The pardon of Arpaio also undermines the court’s 
protections of private constitutional rights because Arpaio was found guilty of criminal 
contempt after he disregarded a court order that prohibited him from committing continued 
violations of the constitutional rights of plaintiffs in a civil case against him. Thus, the 
judiciary’s power to enforce the Bill of Rights was eviscerated. ​Courts need to have the 
necessary resources and authorities to protect their power as a co-equal branch of 
government. 
 
Pardons granted or offered for a corrupt or obstructive purpose.​ A third limit on the pardon 
power comes from acts of Congress that prohibit bribery and obstruction of justice.​ It would 
contradict laws on obstruction of justice to issue or offer a pardon to impede or obstruct a 
criminal investigation. Indeed, the articles of impeachment against Richard Nixon included 
his “endeavoring to cause prospective defendants, and individuals duly tried and convicted, 
to expect favored treatment and consideration in return for their silence or false testimony, 
or rewarding individuals for their silence or false testimony.” For a President to leverage 
“favourable treatment” by issuing or ​dangling a pardon​ to influence participants in criminal 
proceedings would run afoul of these laws. Such a pardon would not be a proper and lawful 
exercise of the President’s pardon authority.3 
 
The same goes for a pardon given in exchange for a bribe. For example, some questioned 
whether President Clinton’s pardon of Marc Rich in 2001 was a quid pro quo for campaign 
donations from Rich’s wife. Federal prosecutors empaneled a grand jury and spent years 
investigating. As then-Senator Jeff Sessions said when he endorsed the FBI investigation, 
“From what I’ve seen, based on the law of bribery in the United States, if a person takes a 
thing of value for himself or for another person that influences their decision in a matter of 
their official capacity, then that could be a criminal offense.” While the grand jury did not 
indict President Clinton for bribery, the pardon power cannot be used to evade bribery laws. 
 
Proposed Solutions 
 
Each branch of government has a role to play in preventing abusive and unconstitutional 
pardons. To be sure, much of the responsibility will remain with the President and 
executive branch advisers. But Congress also has a role to play. Committees and individual 
members should use their platforms and oversight authority to explain the limits on the 
3

Alex Whiting, ​Why Dangling a Pardon Could Be an Obstruction of Justice --Even If the Pardon Power is 
Absolute​ (March 28,2018), Just Security. Available at 
https://www.justsecurity.org/54356/dangling-pardon-obstruction-justice-even-pardon-power-absolute/​.  

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 pardon power and ensure accountability for improper pardons. But there are 
also legislative measures Congress can enact to deter and ensure accountability for the 
three categories of unlawful or abusive pardons described above, including: 
 
Ensuring that Congress can step in if a President uses or offers a pardon to 
impede an investigation into himself: 
● Congress should enact a measure along the lines of ​The Abuse of Pardon Prevention 
Act of 2018​. That measure would give Congress access to key materials from any 
ongoing law enforcement investigation that the President seeks to impede with his 
pardon power, preventing a President from using a self-protective pardon to bury an 
investigation and place himself above the law.4  
● That measure could be strengthened by clarifying definitions of relevant terms like 
“pardon application” and “witness”; adding an additional enforcement mechanism; 
covering situations in which the President’s campaign or personal business interests 
are a target, subject, or witness; and ensuring protection for pardon whistleblowers. 
● Congress may also wish to require the Attorney General or White House Counsel to 
provide reports on any occasion in which the President directly or indirectly offers or 
dangles a future pardon to one or more specific individuals.   
 
Codifying the requirement to appoint a private attorney ​if the Justice Department 
(DOJ) drops pursuit of a contempt for not following a court order that protects others’ 
constitutional rights in a case in which DOJ abandons an investigation or prosecution after 
a self-protective pardon. 
● The Federal Rules of Criminal Procedure call for the courts to appoint a private 
attorney to step into the shoes of DOJ if DOJ fails to prosecute a contempt of court 
matter. Congress should codify this provision into the U.S. Code to make clear that 
it is required, including in the face of pardons and for cases on appeal​. ​It should also 
apply in cases where the contempt is for defying a court order protecting people’s 
constitutional rights.  
● Congress should also expand the private attorney requirement to cover 
self-protective pardons that lead DOJ to abandon an ongoing investigation or 
prosecution in which the President, his family, campaign, or business is a subject, 
target, or witness. 
  
Enacting a resolution​​ ​reiterating that the President cannot grant or dangle a 
pardon in violation of bribery and obstruction laws  
● The resolution would reiterate that pardons cannot be made in exchange for some 
benefit or to influence or impact participation in an investigation; that courts should 
not view such pardons as valid and enforceable; and that the acts of issuing or 
offering pardons for these purposes may be high crimes and misdemeanors that 
could lead to impeachment proceedings.  
4

​Abuse of the Pardon Prevention Act, S.2770, 115th Cong. (2018). Available at 
https://www.congress.gov/bill/115th-congress/senate-bill/2770/text​.  

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