Preventing and Deterring Unlawful Pardons

White House


The presidential pardon power is limited by the Constitution, the system of checks and balances it establishes, and the individual rights it protects—as well as by federal law. If the pardon power were absolute, it would permit the president to place himself above the law and undermine the rest of the Constitution. Congress has a critical role to play in preventing improper pardons.

The pardon power is not absolute, but is constrained by the rest of the Constitution.

  • The president may not use the pardon power in a way that violates core constitutional rights or undermines the role of the judiciary in protecting constitutional rights. Thus, the president could not issue a pardon for a category of offenses to all, and only, people of a certain race or religion. Nor can the president issue a pardon that prevents a court from protecting people’s constitutional rights.
  • The president may not use the pardon power to place himself above the law. The president may not issue a self-pardon. Similarly, he cannot issue a pardon to impede an investigation into himself or his campaign or business interests; such a pardon, if effective in impairing an investigation, would amount to a self-pardon.
  • The pardon power is constrained by laws of Congress prohibiting bribery and obstruction of justice. Congress has enacted laws to prohibit certain types of corruption, such as bribery, and these apply to the president’s use of the pardon power. As a result, the president may not issue a pardon in exchange for a bribe. Nor may he offer or issue a pardon to influence or tamper with a witness’s testimony in an ongoing investigation.

As a co-equal branch of government, Congress has an important role to play in preventing the president from abusing the pardon power.

Congress should use its oversight authority to investigate potential improprieties and can use its power to impeach if it finds abuses of the pardon power.

  • Congress should employ its extensive oversight tools to investigate potentially unlawful pardons or promises of pardons. Congressional committees may request or subpoena documents and witness testimony to determine the context and intent behind issuance of particular pardons or pardon offers, and should publish reports to ensure transparency and allow for public scrutiny.
  • Congress should pass legislation that ensures lawmakers have access to relevant materials in cases of pardon abuse. Congress should require that the Department of Justice and White House Counsel submit to it all investigative materials related to an offense for which the President issues or offers to issue a self- or self-protective pardon, as well as records of conversations and materials associated with its consideration.
  • Congress should reiterate that federal bribery and obstruction of justice laws apply to issued or offered pardons. To correct for any uncertainty that may arise as to whether these laws apply to the President, Congress could preemptively revise relevant federal bribery and obstruction of justice statutes to remove all doubt.
  • Congress should codify the requirement that the court must appoint a private attorney to prosecute contempt of court for defying a court order that protects others’ constitutional rights in a case in which the Justice Department abandons an investigation or prosecution after the President issues a pardon.
  • Congress should delimit the constitutional boundaries of the pardon power through a Sense of Congress resolution. While non-binding, the resolution would clarify the legislature’s understanding of appropriate limits of the President’s power in order to uphold the Constitution.

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Quick Links

Coalition Fact Sheet: Preventing and Deterring Unlawful Pardons

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Policy Brief

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Coalition Letter to Congress Urging Passage of the Protecting Our Democracy Act

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The Pardon Power – Frequently Asked Questions

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Case Documents

Case Documents

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