House Democrats are calling for Congress to rein in the president’s pardon powers after President Trump’s mass clemency for the Jan. 6 mob and President Biden’s reprieve for certain family members.
The Democrats are quick to emphasize that they view Trump’s pardons as much more egregious, since they largely benefited people convicted of crimes — including violent assaults on police officers — while Biden’s were largely preemptive.
Still, the lawmakers contend the controversy incited by both figures has highlighted potential abuses of the pardon system and demanded Congress step in to adopt some official limits.
“Pardons should be rare,” Rep. Ami Bera (D-Calif.) said. “And I would hope there’s a place for us in Congress to try and put some checks and balances on the pardon system so it’s not just carte blanche.”
Rep. Mark DeSaulnier (D-Calif.) delivered a similar message, saying Trump’s actions in particular have made it “absolutely” necessary to adopt some boundaries for presidential clemency powers.
“There’s got to be some criteria,” he said. “I say that particularly for [Trump]. There’s not an equivalence, even remotely, between him and President Biden. But still, it’s a very archaic law. And it needs to be looked at. And there should be some criteria, and some role for Congress.
“This isn’t good.”
Some Democratic leaders also appear open to reforms. Reps. Pete Aguilar (D-Calif.) and Ted Lieu (D-Calif.), who head the House Democratic Caucus, both said they’re eager for the Judiciary Committee to have a “robust debate” on potential changes.
“I support that robust discussion, and I would live by the law of the land,” Aguilar said.
In the early stages of that debate, though, it’s unclear what options are available to Congress.
Rep. Jamie Raskin (D-Md.), a former constitutional law professor, noted there’s already at least one restriction governing pardons: A president can’t sell them for his own benefit. And Raskin said Congress could, in theory, adopt additional limits, which might include stipulations that a president can’t pardon those who committed crimes in an effort to keep him in power after an election defeat — the very scenario surrounding the Jan. 6, 2021, attack on the Capitol and the hundreds of arrests that followed.
“We could theoretically make it illegal to pardon someone whose crime you, yourself, incited or aided and abetted,” said Raskin, who’s now the senior Democrat on the House Judiciary Committee. “And then someone in Donald Trump’s situation would not be able to pardon his own insurrectionary foot soldiers.”
Yet there are already questions swirling around the legality of such restrictions. That’s because the president’s pardon powers are derived directly from the Constitution, leaving some lawmakers to wonder if Congress has the authority to adopt reforms without amending the nation’s founding governing blueprint — an enormously high bar that would require support from two-thirds of Congress, in both the House and Senate, and two-thirds of state legislatures from around the country.
Raskin said there’s an additional complicating factor: The Supreme Court’s decision last year to provide Trump with broad immunity from prosecution for all “official acts” might mean there’s no apparatus for enforcing pardon limits even if a president violated them.
“I don’t know if it would be constitutional, and I don’t know how you would enforce it, because the presidential immunity decision renders the president effectively immune from prosecution for exercising things that are within his presumptive powers,” Raskin said.
“So it would probably require a constitutional amendment to try and prevent someone from pardoning his own insurrectionary mob.”
The debate arrives two days after Trump, in the first hours of his second term, signed a host of executive orders, including one providing a blanket pardon to more than 1,500 people involved in the rampage of Jan. 6, when a mob of Trump supporters stormed the Capitol in a failed effort to overturn his election defeat. Trump also commuted the sentences of 14 other rioters representing far-right white nationalist groups.
Many of those people had been convicted of assaulting police officers, prompting a backlash from Democrats — and even some Republicans — who said Trump’s move controverted Republican claims of being the party that champions law and order and personal responsibility.
“If you back the blue, then obviously you would oppose people who have either pled guilty, or been found guilty, of assaulting law enforcement,” said Rep. Bennie Thompson (D-Miss.), who led Congress’s special investigation into the Jan. 6 rampage.
Biden is also under fire for the pardons he issued in his final months, including those benefiting his son, Hunter, who was facing sentencing in December for several felony charges, and other members of the president’s family. The former president also used the last hours of his White House tenure to offer preemptive pardons to Thompson, Aguilar and the other seven members of the Jan. 6 select committee.
Those moves drew howls from many Republicans on Capitol Hill, who said Trump’s decision to pardon the Jan. 6 rioters was merely building on the precedent Biden had set — an argument rejected by Democrats who were quick to note what they see as a big distinction.
“The pardons that took place in the morning on Jan. 20 were pardons of innocent people,” Raskin said. “The pardons that took place in the afternoon were of guilty people.”
