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In some countries, the head of state can pardon anyone for alleged crimes. For example, in Nazi Germany, Adolf Hitler pardoned murderers of communists and Soviet prisoners of war, in those cases in which those crimes were actually prosecuted and resulting in a conviction.

In the U.S.A., the President can also pardon anyone for (alleged) federal crimes. What checks and balances exist to prevent a U.S. President from pardoning anyone convicted for a federal crime when he or she thinks that shouldn't be a crime in the first place (apart from losing re-election if such pardons are impopular)? Reportedly, President Trump has said that officials who take private land in order to build a border wall will be pardoned (a White House official has reportedly said this was a joke).

Mikey
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gerrit
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    A related question discusses (without coming to a clear conclusion) whether the Supreme Court can void a pardon given as part of a scheme to commit a crime: Could the SCOTUS void a Presidential Pardon? – divibisan Aug 28 '19 at 15:38
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    Another related question: Could a US President abuse their pardon powers to unilaterally make laws? – divibisan Aug 28 '19 at 16:53
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    The pardon for any criminal act committed in taking the land doesn't stop the landowner from enforcing his or her ownership rights in court. That's not a criminal matter, and pardon power has no effect on the outcome. Similarly you can sue for civil damages related to infringement of property rights and perhaps other civil rights. – phoog Aug 28 '19 at 20:35
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    @phoog Tell that the President ;-) – gerrit Aug 28 '19 at 21:20
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    The presidential pardon itself serves as a potential check against abuse by the legislature (in the event that it passes unjust laws) and the judiciary (in the event that if falsely convicts people). It would be difficult to create a check against abuses of the pardon itself without negating that. – Ray Aug 29 '19 at 02:45
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    One word: Elections. – Peter - Reinstate Monica Aug 29 '19 at 15:01
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    Mostly impeachment. – NoDataDumpNoContribution Aug 29 '19 at 21:17
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    @gerrit I'd be happy to. I doubt he'd be willing to speak with me. Another point: if Federal officers violate a landowner's property rights, they will have civil and possibly criminal liability under state law as well as federal law. The president has no power to pardon state crimes. – phoog Aug 30 '19 at 14:16
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    @gerrit - The officials wouldnt (and couldn't) personally take private land. This would be an eminent domain issue and would go to the courts. And, building a border wall, unlike the Kelo case, most certainly falls under traditional views of eminent domain. – Mayo Aug 30 '19 at 14:55
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    Also the US DoJ has some very broad tools like racketeering and "criminal conspiracy." If I were a person faced with making that choice (commit a specific criminal act with the promise of a pardon for that specific criminal act) I would not be so confident a future DoJ would not come after me as part of a broader criminal conspiracy and double jeopardy is not so sure a defense there. – Affe Aug 30 '19 at 15:32
  • @Affe whether a subsequent conspiracy prosecution would be possible would depend on the wording of the pardon. Arpaio's pardon is very limited, referring to a specific conviction and to crimes arising under the "contempts" chapter of 18 USC in connection with one case only. But Nixon's pardon covered "all offences against the United States" during the his term in office. Double jeopardy has nothing to do with it, however. – phoog Aug 30 '19 at 17:54
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    There are no real checks except for a risk of unpopularity. If there were no presidential pardon powers it's hard to imagine we would invent them these days. – Simd Aug 31 '19 at 16:37

4 Answers4

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Given that "an impeachable offense is whatever half of the House of Representatives considers it to be", impeachment could be a possible remedy if a President's actions were flagrantly immoral and/or sufficiently unpopular. The Constitution says that a president can be impeached and removed if they commit "high crimes or misdemeanors", but this term is not defined elsewhere in the constitution, and was understood by (at least some of) the Founders to be a catch-all for any betrayal of the public trust.

Contemporaneous comments on the scope of impeachment are persuasive as to the intention of the framers. In Federalist No. 65, Alexander Hamilton described the subject of impeachment as

those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

In fact, the Founders explicitly considered impeachment to be a remedy for abuse of the pardon power. The possibility of abuse of the pardon power came up during the debates on the Constitution, with George Mason arguing that the President should not have a pardon power lest he pardon those with whom he had conspired to commit a crime. James Madison pointed out that impeachment would be a valid remedy in such cases. [Thanks to @BradC for providing this link in the comments.]

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Michael Seifert
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    I agree with the content of your answer, but I think the caveats are unnecessary; impeachment is, and was intended to be by the founders the remedy for abuse of pardon. Regarding your final paragraph; unless you think any impeachment is a "constitutional crisis" (which some do argue), impeaching the president for this kind of abuse is clearly and explicitly anticipated by the constitution. – BradC Aug 28 '19 at 18:14
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    (as evidenced by the "except in cases of impeachment" clause added to the pardon power) – BradC Aug 28 '19 at 18:21
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    This is in fact an empty counter. Most presidents wait until his final hours or days in office to grant the most controversial pardons... – dolphin_of_france Aug 28 '19 at 21:29
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    @dolphin_of_france Not entirely empty. Those would-be pardonees may have to wait up to 8 years to receive their controversial pardon. In the meantime they continue to serve their prison sentence. – JBentley Aug 29 '19 at 19:33
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    @dolphin_of_france: Moreover, once the President leaves office, he may be liable for ordinary criminal prosecution. For example, prosecutors might allege a conspiracy or obstruction of justice. The pardon itself may not be a crime, but the surrounding communications certainly can be. – Kevin Aug 29 '19 at 22:06
  • @dolphin_of_france - For what (little) it's worth, my impression is that pardons were much more time sensitive in the past. If someone is going to be fined, sentenced to be hung, or other immediate action, you can't wait years to pardon them and expect it to have an effect. When it's just "spend years in jail", it's much easier to wait. (Although that's still some punishment.) – Bobson Aug 30 '19 at 14:45
  • Relevant SCOTUS case: https://caselaw.findlaw.com/us-supreme-court/71/333.html – JimmyJames Aug 30 '19 at 15:27
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Theoretically, the congress could try to impeach.

BUT, in reality, presidents often wait until his final days/hours to grant the most controversial pardons.

And once a pardon is granted, there is no recall of the pardon.

Therefore, there is really no checks to pardon power, making it the most KING like power the presidency holds.

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    Pretty much. The POTUS' role as commander in chief could be argued equally king-like, but Congress does have the power to defund the military if it doesn't like what is being done with it (aka: "Power of the purse"). You can't de-fund a pardon. – T.E.D. Aug 29 '19 at 13:10
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    If impeachment were not a balance to the power to pardon, there would be no reason to wait to grant those controversial pardons. This is a check, even if that check merely delays the use of the power, rather than prevent/remedy it's use. – GOATNine Aug 29 '19 at 13:10
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    @GOATNine - Well, I generally more get the impression that waiting until the end is kind of the flip-side of being a Lame Duck president. You've lost your authority over Congress conferred by your ability to affect their future elections, but that also means nobody can politically punish you in any way for a pardon they don't agree with. – T.E.D. Aug 29 '19 at 13:14
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    ...which of course should be everyone's big waving red flag about what the real check on the power is: Political consequences to the POTUS (or by virtue of being top of the ticket, his party) in the next election, inability to get his favorite bills through Congress, that kind of thing. – T.E.D. Aug 29 '19 at 13:21
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    This still means that the person he pardons might spend several years in prison, waiting for the President to reach the end of his term to grant the pardon. So it's a bit of a check. – Barmar Aug 29 '19 at 14:37
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    The presidency was intentionally designed to be a kind of limited monarch in order to produce a system which combined the advantages of a republic with monarchy. It isn't exactly a shock to find the president's specific powers are those of a king. – A Simple Algorithm Aug 30 '19 at 14:03
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As already said the primary check against abuse of a pardon is the threat of impeachment.

However, I'd argue there is another, unofficial, check against presidential abuse of pardon that is worth discussing, the states' judicial systems.

I already go into detail about this in another question, so I won't repeat myself too much. The short version is that most federal crimes are also state crimes, and thus in most cases anyone pardoned of a federal crime usually could still be convicted of a state crime for the same action. The supreme court has ruled that this is not a violation of the fifth amendment's protection against double jeopardy since the state and federal governments are separate entities.

There has been a long running common agreement between the state and federal governments to respect each others decisions in regard to a crime. If someone is put on trial for a federal crime the state will generally respect that ruling, rather the person is found guilty or innocent, without having a second state level trial; and likewise the federal court's general respect the state's trials. This is NOT constitutionally required, but it's still a very strongly held tradition in deference of avoiding double jeopardy.

Generally this has also been true for federal pardons, state's respect the pardon and do not prosecute the pardoned individual of the same crime on the state level. However, there is no legal requirement for a state to do this. If a state feels that a pardon has been abused in an unjust manner they have the right to convict the pardoned individual on the state level, assuming they have an appropriate state law that was violated. This would require breaking a very strongly held tradition, and as such would likely only be done in the event of very blatant abuse, but it still stands as a second line of defense against such an abuse by giving a means that a pardoned individual may still face justice for his or her crimes if the pardon is agreed to have been abused.

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    Indeed, I made an argument like this in another forum, regarding Trump's promise to pardon his conspirators in getting the wall built. Trump probably doesn't even realize he can't pardon state crimes. – Barmar Aug 29 '19 at 14:40
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    Hmm, but the state can grant pardons too. But I see how this is some check against a rogue individual president, but if an entire party goes rogue and the rogue wing in (blind) loyalty to the president takes control at many levels, draining the swamp of anyone who might act as a control, this would break down. – gerrit Aug 29 '19 at 15:21
  • @gerrit assuming every state has the ability to do a pardon in their constitution (which I'm not certain is true, but could be) there is still the fact that roughly half the states will have an opposite political lean then the president at any given time,and thus may press charges. Realistically I think a 'rouge party' is kind of impossible presumption. If a party representing 1/2 of the US all agree they want something that's not going rouge, that's defining their platform. If roughly half the population think's a pardon was right then the pardon was probably never an abuse of power. – dsollen Aug 29 '19 at 16:54
  • @dsollen Your latter sentence is debatable, but such a debate is quite far beyond the scope of this comment thread :) – gerrit Aug 29 '19 at 17:57
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    @dsollen every state has the legal concept of pardons, but few (maybe none?) give their governors unlimited pardon power like the president has. In many states a court or pardon board has to be involved for some types of pardons and commutations, and in some states the governor isn't part of the process at all. – user2752467 Aug 29 '19 at 19:20
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    @JustinLardinois according to Wikipedia, only nine states have pardon boards that have the exclusive power to pardon, and "the governors of most of the 50 states have the power to grant pardons or reprieves for offenses under state criminal law." One must also consider whether a pardon board was created by the legislature as a necessary step in the process or by the executive as a channel for fielding (optional) applications. It's not at all obvious from a cursory internet search that few or no states give their governors unilateral power to pardon. – phoog Aug 30 '19 at 14:35
  • "in most cases anyone pardoned of a federal crime usually could still be convicted of a state crime for the same action": what cases are you thinking of? I can think only of two: federal jurisdiction that does not overlap with the jurisdiction of any state (e.g., embassies, international waters) and of preemption (e.g., immigration law). There's now also the weird situation with cannabis. These won't apply in the case under consideration, of course, but there may be other ways for federal crimes not to be state crimes. – phoog Aug 30 '19 at 14:37
  • @phoog there are a number of laws on federal government that just never were made state laws.. As you said cannabis is one example, where there is no law against it in many states but there are some in federal; however it's not the only example. Sometimes a state disagrees with federal government on rather something should be outlawed and so don't pass a law, sometimes the state law is defined differently enough to not cover an edge case. sometimes because a law exists federally a state never bother's passing their own since they are fine with federal government handling the situation etc. – dsollen Aug 30 '19 at 15:18
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    @phoog https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisoncharacteristics-of-pardon-authorities/ is a good state-by-state breakdown. Now that I look, I'd say 20 states (depending on how you count) give governors near-unlimited pardon power, so it's a fairly even split. Note that that page doesn't cover commutations, which could be regulated differently. – user2752467 Aug 31 '19 at 01:13
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Another option to add to the great list already present: delay charging someone for a federal crime from which you believe the President may pardon them.

This is obviously the most limited of the available options for a number of reasons, but if the crime occurred in the temporal vicinity of an election, simply wait until a new, potentially more amenable President takes office and then file charges.

Limitations include, but are not limited to:

  1. Statutes of limitation. If the statute of limitations for the crime is 2 years and the President will remain in office for 3 years...no luck for you, barring extremely long court proceedings.
  2. Time sensitive evidence. Discovery is the process of forcing court participants to furnish information relevant to the crime. If you fail to file charges, the criminal can attrition evidence of their crime -- be it legally or otherwise (many documents have legal retention periods. After they've expired, you can legally delete them unless they're under subpoena).
  3. The criminal has more time to flee to a jurisdiction more favorable to them (i.e., a country that won't extradite)
  4. This is neither here nor there, but as a federal prosecutor, the President is your boss and is very likely to have personally appointed you. I.E., you're very likely to agree with any pardon decisions thus rendered. If your term outlasted the term of the President that appointed you, though, and the Senate habitually declines to confirm your replacement, you may find yourself strategically positioned to delay indictments until the next President is elected!
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    This doesn't work at all. The president can grant a pardon before charges are brought, as Gerald Ford did for Richard Nixon. – phoog Aug 30 '19 at 14:39
  • @phoog: Ford said he was pardoning Nixon for as-yet-uncharged crimes, and had the power to effectively stifle any efforts federal prosecutors might have made to bring charges. Has any court examined the question of whether that pardon was "officially" and binding against future prosecution under future administrations? I can't see any way double jeopardy would apply if charges were never brought. – supercat Aug 30 '19 at 16:19
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    @supercat it has nothing to do with double jeopardy. A pardon does not simply overturn a conviction or preempt a prosecution; it absolves the recipient of criminal liability for the identified acts. This has the effect of overturning any conviction or rendering any prosecution ineffective, but it also has this effect on all future prosecutions. See ex parte Garland (at Wikipedia): "the offender is as innocent as if he had never committed the offence." – phoog Aug 30 '19 at 17:30
  • @supercat if the pardon were binding only on the administration that issued it, it would be no pardon, but rather an exercise of prosecutorial discretion. – phoog Aug 30 '19 at 17:32
  • @phoog: True, but I don't think it's clear that the power to "pardon" is applicable to crimes for which no charges have been brought. Ford's "pardon" certainly steered prosecutorial discretion against pressing charges, but I'm unaware of its power being tested beyond that. – supercat Aug 30 '19 at 17:51
  • @supercat It is very clear. From Ex parte Garland: "The power ... extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment." (emphasis added) For another example of preemptive pardon, see Johnson's pardon of December 25, 1868, applying "to all and to every person who directly or indirectly participated in the late insurrection or rebellion" and absolving them of liability for the offence of treason. – phoog Aug 30 '19 at 18:11