January 20th, 2025 was an unusual day. It’s not often that two different presidents engage in highly controversial acts on the very same day. I am referring to the flurry of pardons at the end of the Biden administration and the beginning of the Trump administration.
America has become so polarized that it is hard to imagine any proposed constitutional amendment gaining the needed 38 states required for ratification. But I wonder if pardons might be an exception.
In Republican dominated states, one would think that the Biden pardons would provide a strong argument for an amendment restricting presidential pardons.
That could take the form of an outright ban on pardons, or a requirement that they first clear a special court appointed to consider potential pardons.
In Democratic dominated states, proponents could point to the recent Trump pardons of the J6 group, as well as some politically motivated pardons from the end of his first term in office.
I’m not sure I know a single person that is not outraged by at least some of the pardons issued over the past few days, regardless of their party affiliation. If this isn’t enough to trigger a constitutional amendment, then I question whether any more amendments will ever be able to attract the necessary support.
Ironically, one of the best arguments for ending the pardon power of the presidency was inadvertently made by Donald Trump, in perhaps his finest moment during his first term. In a brief speech lasting less than 3 minutes, he made a passionate argument for the necessity of punishing those responsible for what he called the “violent” attack on the law enforcement officers that were trying to protect the Capitol building and its occupants. Trump was right, they should “pay” for their crimes. If presidents did not have power to pardon, they would have paid.
READER COMMENTS
steve
Jan 22 2025 at 2:29pm
LOL. Each party would be willing to agree that the other should not have the right to pardon but neither party will give up the right to their own pardons.
Steve
Craig
Jan 22 2025 at 3:06pm
“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate [he means President here not Chief Justice]is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.” — Madison writing as Publius in Federalist 74
Perhaps a ‘cease fire’ in this Cold Civil War?
Andrew
Jan 22 2025 at 3:24pm
I’m worry that, unless very carefully drafted, this would lower the probability of deserving people getting pardoned. The rate of pardons is already quite low, and I would argue that there are too many people that are incarcerated to begin with. Something more targeted that focuses on self serving pardons for cronies would be better, but I’m not sure how you would articulate this. Maybe just banning prospective pardons? Alternatively, creating a separate pardon procedure not involving the president.
Scott Sumner
Jan 22 2025 at 10:31pm
“Alternatively, creating a separate pardon procedure not involving the president.”
Given the past 5 years, that would be my preference.
Mark Brophy
Jan 24 2025 at 5:03pm
The pardoning commission should be required to pardon a certain minimum number each quarter. Too many people are in prison.
Pierre Lemieux
Jan 22 2025 at 6:58pm
Quite a remarkable video! Usually, Trump says A and non-A in the same speech if not in two clauses of the same sentence. On this topic, he said A but non-A only four years later.
Scott Sumner
Jan 22 2025 at 10:32pm
Once he got past the impeachment trial, they went from being criminals to heroes.
MarkW
Jan 23 2025 at 5:20am
I think Trump’s argument would be that he hasn’t pardoned the J6 protesters who attacked cops or committed violent acts on that day.
Jon Murphy
Jan 23 2025 at 7:52am
Except he did: https://reason.com/2025/01/21/trumps-blanket-clemency-for-capitol-rioters-excuses-political-violence/
Mark Brophy
Jan 24 2025 at 5:01pm
Trump pardoned 10-20 violent people and 1490 people who should’ve received a $100 fine for trespassing rather than a prison sentence.
Matthias
Jan 22 2025 at 7:31pm
Until fairly recently most of the questionable pardons came at the very tail end of presidents’ terms, when they no longer care about voters or public opinion. Literally in the last few days.
So my suggestion would have been that anything that drags out the process long enough that a president would have to start it at least a few days before their lame duck period starts would work. Whether that’s just an outright delay, or just the side effect of something like the suggested independent commission.
A straight up delay of about three months (with the requirement that whoever is president at the beginning and end of the delay have to both agree for the pardon to take effect.)
However Trump now had a string of high profile pardons at the very start of his term.
You can either look for a different mechanism (like Scott’s suggestions!), or you can shrug your shoulders and call it democracy in action? After all the democratic mandate of any politician is probably strongest at the very start of their term.
R R Schoettker
Jan 22 2025 at 9:46pm
Why bother with a pardon amendment? Of what possible utility is the effort to amend a document that is typically treated with disdain and contemptuous indifference when its restrictions on federal State authority hinder the wishes of the powerful to act or alternately is regarded as sacred writ that justifies any expansion of its limited grants when that excess serves those same powerful interests. The so-called ‘supreme law’ has become nothing more than a ‘blank check’ through subjective ‘interpretations’ of its ‘implied’ powers so that it no longer has any objective substance or reality. This country is no longer a constitutional republic but an imperial police State ruled by tyrants who use the tools of tyrants, executive actions and pardons to impose and attain their dictates.
Mactoul
Jan 22 2025 at 11:35pm
There is plenty of lawfare and politically motivated prosecutions. I think the pardons correct for these injustice.
JoeF
Jan 23 2025 at 8:34am
I agree with your first sentence.
Jon Murphy
Jan 23 2025 at 9:39am
Then pardons should be targeted. Blanket pardons for violent individuals who actually committed crimes are unjustified under your criteria.
Mactoul
Jan 23 2025 at 11:02pm
Your general suspicion of authoritarianism and government powers sits oddly with the easy acceptance of official narrative and travesty of legal procedure in J6 case in particular.
I believe that there is a right in America to a speedy trial. But many of the accused are still haven’t’ had trial in four years.
Jon Murphy
Jan 24 2025 at 7:19am
If they haven’t had trials, they cannot be pardoned. Charges dropped? Sure. But not pardoned. So, your objection is irrelevant.
Again, if you wish to defend pardons on “lawfare” grounds, so be it. But then pardons should be limited to those cases. Blanket pardons do not fit the bill.
As an aside, it is exceptionally goofy to talk of “official narrative” of January 6th. It was live. We all watched it on TV. I happened before our very eyes. These people committed crimes on live tv. Some of them even filmed themselves committing the crime.
Jose Pablo
Jan 24 2025 at 1:07pm
You are wrong Jon, J6 never happened. It is just an “official narrative”.
Like the Beer Hall Putsch, the attack on Moncada Barracks or Chavez coup attemp in 1992. All episodes erased from history.
Not that I am trying, by any means, to draw any parallelism among these episodes.
(Although, curiously enough, all the leaders of these episodes managed to perform a come back after looking politically finished for good)
Mactoul
Jan 24 2025 at 9:41pm
And what crimes were committed live on TV? Insurrection? Trespass?
Or is it just going to be Who, Whom? — important thing is whose ox gets gored.
Jon Murphy
Jan 25 2025 at 7:18am
Yes. In addition to violent assault, vandalism, disrupting the operation of the Federal government.
Again, I don’t need an “official narrative” to believe what we all saw live. The only suspect narrative comes from those who try to convince us what we witnessed was not what we saw.
Again, if you want to discuss pardons being good to reverse convictions against political prisoners, I’ve no problem with that. That’s reasonable. But the January 6th folks are the wrong people to make the case.
Arqiduka
Jan 23 2025 at 4:33am
Retain pardons bit limit these to 100 years left to serve per mandate.
MarkW
Jan 23 2025 at 5:26am
How about banning pardons during the lame duck period? That would give voters the opportunity to weigh in on pardons while they were fresh in the mind. Along those lines, we shouldn’t we further reduce the lame duck period? A coupe of weeks would seem like plenty of time to vacate the White House.
Scott Sumner
Jan 23 2025 at 11:41am
I like both ideas.
Mactoul
Jan 23 2025 at 11:04pm
The term pardon applies, strictly speaking, to convicted felons. Thus, many of these so-called pardons could be legally challenged.
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