Ours is a system of “checks and balances.”
The president can do this or that, but the courts and Congress can put a stop to it (depending on the circumstances and relevant rules). When the courts rule that the executive branch can't do something, Congress can write a new law that says the president can do it. When Congress passes a law that the president doesn't like, he can veto it. Congress, if it has enough votes, can override the veto. Etc. The idea is to deny any branch or person too much concentrated power.
Sorry if I sound a little condescending since everyone is supposed to have learned these things in elementary school. But it seems like a lot of people have forgotten how our system is supposed to work, so I thought a quick summary might be helpful.
Anyway, even under our system, each branch has powers that can't really be controlled. Congress, for example, has exclusive authority to collect taxes and spend taxpayers' money, declare war, etc. Once a court acquits a defendant, he or she cannot be prosecuted again for that crime.
The president also has some unique powers. Including the sole and final authority to grant pardons, which cannot be reviewed or revoked by Congress or the courts.
It's time for us to change that, and the only way to do that is by amending the Constitution.
There are two reasons to get rid of the president's power to pardon. The first is the grotesque abuses of that power by Presidents Trump and Biden. In his first term, Trump issued a series of atrocious pardons for, among others, lackeys, war criminals and political allies.
Biden then issued general and preventive measures. pardons for his family and several political allies. Partisan advocates like to say this was necessary to protect the Bidens from persecution by the incoming Trump administration. These defenses tend to ignore the Biden family extremely shady business transactions. They also ignore a series of other pardons and commutations that Biden supposedly just outsourced to ideologues on his staff.
Back in office in 2025, Trump has surpassed Biden (and himself). He began his second term by granting mass pardons to thugs who beat police with flagpoles and stormed the Capitol in his name on Jan. 6, 2021. Since then, he has pardoned a gallery of dishonest donors, partisan allies, and people with business ties to him or his family, including crypto billionaire Changpeng Zhao, CEO of Binance, a trading platform that permitted terrorists and criminal organizations to finance their operations under the radar.
Zhao pleaded guilty to money laundering, but also worked assiduously to boost the Trump family's crypto business. Certainly appears who obtained a pardon in exchange for services rendered.
The second reason to get rid of the president's pardon power has to do with the above about checks and balances. The Founding Fathers believed that the only remedy for corrupt abuse or misuse of pardons was impeachment. James Madison, the main author of the Constitution, was explicit on this point.
At the Virginia ratification convention, George Mason objected that the power of the pardon was too great and that presidents could use pardons to bribe criminal activity in their name. madison responded that, “If the president is connected in any suspicious way with any [such] people, and there is reason to believe that he will take refuge, the House of Representatives can impeach him.”
The problem: Congress's impeachment power has proven a dead letter in the modern era of hyperpartisanship. Just as presidents cannot be trusted to use the pardon power responsibly, Congress cannot be trusted with the responsibility of holding presidents accountable. Without checks there is no balance.
There should still be room for pardon and clemency in our system. But leaving it solely up to presidents has led to increasing abuses. In fact, I think it's almost certain that Trump will use the Biden precedent to preemptively pardon much of his administration, his children, and himself before leaving office. Given the current militarization of the justice system (and its abuse of it), it would be almost a fool not to do so.
The Constitution was written with men like George Washington in mind. When Washington chose to resign after two terms, he established a two-term tradition that endured until Franklin Roosevelt violated it. We later amended the Constitution to codify what had been a tradition.
For most of our history, presidents took the solemnity of pardons (and the threat of impeachment) seriously. They don't do it anymore. It is time to change the Constitution accordingly.
UNKNOWN: @JonahDispatch
