Shouldn’t Presidential Pardons be Limited and Justified?

Philip Kotler

One of the serious omissions in the U.S. Constitution is the unlimited freedom given to U.S. Presidents to grant as many pardons as they wish without needing to provide any justification for any granted pardon.

What the Constitution and the Law Says

The pardon power is in the United States Constitution — specifically Article II, Section 2, Clause 1. It gives the president the power to grant “reprieves and pardons for offences against the United States, except in cases of impeachment.”

“Pardons and clemency” under this clause aren’t limited to full pardons. They can include commutations (reducing a sentence), reprieves (postponements), and even group-based amnesties.

The power is very broad. The Supreme Court of the United States has called it “plenary,” “discretionary,” and largely not subject to legislative control.

A pardon may be granted at almost any time after the offense: before charges are filed, during criminal proceedings, after conviction, or even after a sentence is served.

There are some clear Boundaries.

• The president can only pardon federal offenses — crimes “against the United States.” That means the president cannot pardon violations of state law, nor does the power cover state-level criminal or civil matters.
• The president may not pardon in cases of impeachment. If Congress impeaches and convicts a federal official (including the president), pardons cannot be used to overturn that.
• If a pardon is given, it generally removes the legal consequences of conviction (punishment, disqualifications, disabilities) and prevents future federal criminal enforcement for the same offense. But beyond those, there are remarkably few structural constraints:
• The courts have repeatedly held that Congress cannot pass laws that limit or restrict the pardon power — for example, by banning pardons for particular classes of crimes or people.
• The timing of a pardon — before or after conviction — is left to the president’s discretion.
• There’s no constitutional prohibition on “blanket pardons” (pardoning many people at once, or pardoning wide categories), though historically use of amnesties has tended to be more limited.
• The Constitution does not explicitly address self-pardons (i.e., a president pardoning himself) or pardons of political allies, family members, or donors.

Once you satisfy the basic requirements (federal crime, not impeachment), the president’s pardoning power is “virtually unfettered.”

U.S. Presidents Differ Greatly in the Number and Types of Granted Pardons

Presidents Clinton, Reagan, Carter, Ford, and Nixon granted the most pardons in recent times, numbering over 300 or more. Obama granted only 212 pardons. Trump is still below 150.

The “pardons” issue has risen again because President Donald Trump has issued a number of notable and questionable pardons. On January 20, 2025, during the first days of his second term, Donald Trump granted blanket clemency to nearly 1,600 persons convicted of or awaiting trial or sentencing for their offenses on January 6, 2021 when they stormed the Capitol. Today, ironically, hundreds of the rioters are now filing federal damages claims, raising questions over whether mass clemency is becoming a pathway to taxpayer-funded payouts.

Since that pardoning action, Donald Trump issued several other pardons. His pardons took a different look from those of other Presidents. For example, Obama’s pardons largely consisted of criminal justice reform, especially nonviolent drug offenders. Trump’s pardons involve largely politically connected, loyalists, or celebrity allies. More specifically, Trump pardoned allies, political operatives, donors, right-wing media figures, war crime defendants, and people portrayed favorably on Fox or Twitter. Many of these pardons are self-serving.

• Joe Arpaio: Sheriff convicted of criminal contempt for ignoring court orders on racial profiling.
• Dinesh D’Souza: Conservative commentator convicted of campaign finance violations.
• Eddie Gallagher: Navy SEAL accused of war crimes; Trump intervened throughout the case.
• Charles Kushner: Father of Jared Kushner, convicted of tax evasion, witness retaliation, and illegal campaign contributions.
• Roger Stone and Paul Manafort: Two central figures in the Mueller investigation. Pardons widely perceived as protecting Trump’s allies and possibly himself.
• Steve Bannon: Charged (but not yet tried) for fraud in the “We Build the Wall” scheme.

Trump rarely provided justifications of these pardons. He bypassed the normal Department of Justice review process. He intervened in military justice and war crimes. The pardons served explicit political narratives rather than policy goals. A major aim was potential self-protection from investigation.

What Reforms Have been Proposed?

Here are several reforms that have been proposed and their purpose.

Reform / Proposal

What It Would Do

Constitutional amendment (e.g., proposed by Steve Cohen (Rep.–Tenn.) and supported by Richard Blumenthal (Sen.–Conn.))

Explicitly ban pardons for self, family members, campaign staff or others who benefit personally; prohibit pardons granted for “corrupt purposes.”

Statutory or procedural reforms — e.g., via the Protecting Our Democracy Act (PODA)

Require transparency: mandate that the Department of Justice submit documentation to Congress when pardons involve the president or close associates; clarify that pardons in exchange for favors would count as criminal bribery; prohibit self-pardons.

Mandatory reporting / transparency rules

Require that pardons (especially for close associates) come with a record of reasoning, made public or delivered to congressional oversight committees — to allow some check on abuse.

Norm-based political constraints

Encourage or rely on norms of restraint: e.g., limiting pardons to rare cases of clear injustice; avoiding pardons for close associates or campaign donors; preserving trust in clemency as mercy rather than political favor.

How Realistic are these Reforms?

• A constitutional amendment is quite difficult — it requires two-thirds of both houses of Congress and ratification by three-quarters of states. Because the pardon power is explicitly in the Constitution, major changes likely need that route.
• Statutory or procedural reforms (like increased transparency) are more feasible — though some doubt whether they’d survive judicial challenge, given the Court’s historical reluctance to let Congress restrict pardon power.
• Relying on norms and political accountability is the easiest (because it requires no legal change) but also the weakest guarantee, especially in politically charged or divided environments.

Fortunately, there is growing interest in reform. The pardon power was originally intended as a safety valve — a way for mercy or fairness when the criminal justice system produces harsh or unjust results. But because it is so broad, it can and has been used for political or personal advantage. That risks undermining public confidence in the rule of law. Reform efforts highlight a fundamental trade-off: if you constrain the pardon power too much, you may undermine its original purpose (mercy, correcting injustice). If you leave it unconstrained, you risk abuse.

Note: Part of this article was aided by ChatGPT.