By Jeffrey Crouch, Assistant Professor of American Government at American University

Now that the initial wave of furious debate over a Trump self-pardon has seemingly cooled off, what comes next? Whether a president may self-pardon remains an open question. There are still good arguments on both sides of that question. And, as before, we simply won’t have an answer unless Trump actually attempts a self-pardon.

But even if this is the end of the self-pardon controversy for now, there’s no guarantee that it couldn’t come back, whether later in the Trump administration or during that of one of his successors. Rather than rely on impeachment, Congress (more likely a Congress with a Democratic majority, but you never know) has one other big gun it could turn to now: amending the Constitution to take the self-pardon question off the table permanently.

There has already been some talk in Congress of movement in this direction: Rep. Al Green (D-TX) apparently will introduce legislation soon that would ban self-pardons. The Framers seemed confident that impeachment would be an effective remedy to a president who used clemency improperly.

Part of the reason why the self-pardon question remains open today is because the constitutional language on clemency is very sparse: we know that the president may “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” But this language from Article II, Section 2, Clause 1 is all the Constitution has to say about federal executive clemency.

It does not have to stay this way, though. Congress could decide to initiate the amendment process under Article V of the Constitution. If the wheels were to start grinding in this direction (a big “if,” at this point), the most likely scenario would be this: two-thirds of the House and Senate would support a joint resolution to amend the Constitution and change the president’s clemency power. The next step would be to obtain the support of three-fourths of state legislatures to ratify the proposal. And then, the Constitution would be altered to reflect whatever proposal Congress supported to end any possibility that the president might be able to self-pardon.

If we take a break from this “theoretical” world and rejoin the “real” one for a moment, it’s perhaps useful to note that Rep. Green is not alone: other legislators have introduced bills to amend the Constitution to address a clemency controversy. So far, none have succeeded.

For example, Senator Walter Mondale (D-MN) supported a constitutional amendment that would allow a president’s pardon decision to be “vetoed” by Congress, provided it could muster a two-thirds vote in both chambers to do so. He argued in the January 1975 issue of the A.B.A. Journal (following the Nixon pardon, which was granted in September 1974) that his proposed amendment would not involve the legislature in issuing the pardon itself, but merely in reviewing the president’s decision to do so. Of course, the Framers decided long ago not to involve the legislature in presidential pardoning decisions.

In February 2001, Rep. Barney Frank (D-MA) introduced H.J.Res.22, which “Prohibits the granting of presidential reprieves and pardons between October 1 of a year in which a presidential election occurs and January 21 of the following year.” This amendment would have prevented two infamous clemency decisions made for the president’s personal interest. The first abuse avoided would have been George H.W. Bush’s pardons to six Iran-Contra figures, a decision implemented on Christmas Eve 1992, weeks after Bush had been defeated by Bill Clinton. The second clemency crisis Frank’s amendment would have averted occurred on Bill Clinton’s last day in office, January 20, 2001, when he granted clemency to a whopping 176 people, including pardons to fugitives Marc Rich and Pincus Green that stirred considerable controversy in the media.    

Finally, an idea that has been introduced by several members of Congress at different times focuses on restricting the timing of a pardon. Echoing a debate that the Framers had over when a pardon may be granted, this proposed amendment [here, offered by Rep. Andrew Jacobs, Jr. (D-IN)] would limit the president to offering clemency only to someone who has already been convicted of a crime. Again, as with the question of giving the legislature a role in clemency decisions, the Framers considered and disregarded this possibility.

Will Rep. Green’s bill succeed where others have failed? It’s impossible to predict what might happen now, but it’s likely that an actual self-pardon attempt might be needed in order to provide Congress with the public will necessary to carry this idea across the finish line. There have only been 27 successful amendments in American history, but then again, as former Pardon Attorney Margaret Love pointed out, “This is uncharted waters.” Perhaps this will be the controversy that spurs the first successful remapping of the Constitution’s clemency clause.

Jeffrey Crouch is an assistant professor of American government at American University. He is author of The Presidential Pardon Power (University Press of Kansas, 2009).

Tags: