Congress Should Curb the Illicit Use of Pardon Powers by a Rogue President
Reforming lobbying laws and FOIA can check the worst abuses despite the Supreme Court’s ill-considered immunity ruling
Dear Readers:
Today, we bring you the latest entry in our Fireproofing the Presidency series—a collection of deep dives on key reforms we should make to the executive branch so that a future rogue president cannot so easily exploit the office for illicit ends. Each entry is penned by an expert in its particular area of focus, and today’s is no different: Kim Wehle, author of Pardon Power: How the Pardon System Works—and Why, is a law professor, a former Assistant U.S. Attorney, and a national expert in constitutional law, especially the separation of powers.
The Supreme Court’s recent immunity ruling is a total travesty that puts all its focus on the dangers of an overzealous prosecutor and none on a deviant or corrupt president. Wehle outlines a few simple steps that Congress could take to at least hold a future rogue president accountable for abusing his or her pardon powers.
Berny Belvedere
Senior Editor
The U.S. Supreme Court’s decision in Trump v. U.S., which essentially sanctioned American presidents using official power to commit crimes, is a watershed moment in the history of the American presidency. The 5-4 majority held that the exercise of “core” powers under Article II of the Constitution is absolutely immune from legal oversight, even if used criminally, and that lesser “official actions” are presumptively immune unless prosecutors can show that criminally confining a presidential act would pose no “dangers on the authority and functions of the Executive Branch.” The majority worried that “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings,” could “distort Presidential decision-making.”
The threat of rogue prosecutors was thus top-of-mind for Chief Justice John Roberts, who wrote the opinion for the majority. Deviant presidents? Not so much.
In identifying what “core” powers mean, Roberts cited a landmark 1952 Supreme Court case that found the presidential power to pardon federal crimes is “conclusive and preclusive,” thus “disabling the Congress from acting upon the subject.” Because the pardon power is “core,” wrote Roberts, neither Congress nor the courts can control or hamper a president’s “discretion in exercising such authority.”
By declaring pardons “core,” the Trump decision put a bulls-eye on a particular type of pardon that has raised eyebrows before: a pardon in exchange for a bribe. Although the immunity ruling could wind up protecting those, too, there are a couple things that Congress could—and should—do to stave off such egregious corruption immediately.
History of Presidential Pardons for Bribes
The specter of a quid pro quo pardon has arisen twice in recent history. On his last day in office in 2001, President Bill Clinton pardoned Marc Rich, a former hedge-fund manager who evaded federal authorities for 17 years on charges of tax evasion, wire fraud, and racketeering by fleeing to Switzerland. His former wife, Denise Rich, and the former finance chair of the Democratic National Committee, Beth Dozoretz, successfully lobbied Clinton for clemency. Morris Weinberg, a former federal prosecutor, remarked to PBS News in 2002: “How could you ever prosecute another tax fraud case if you pardon people that renounce their American citizenship [and] became fugitives [in] literally the most important tax case ever brought?”
As the Senate Judiciary Committee discovered, Rich’s wife gave “at least $450,000 to former President Clinton’s library foundation,” and Dozoretz “pledged to raise $1 million for the Clinton library.” The U.S. Attorney’s Office for the Southern District of New York began a criminal probe into whether the pardon amounted to a bribe, but never brought charges. Both houses of Congress also launched investigations, which went nowhere.
More recently, in December of 2020, it became public that the U.S. Department of Justice was investigating a potential bribery-for-pardon scheme involving the Trump White House. A heavily redacted ruling from the U.S. District Court in Washington, D.C. described the government’s review of “over fifty digital media devices, including iPads, laptops, thumb drives, and computer and external drives,” as well email communications “indicating additional criminal activity” relating to a “secret lobbying scheme,” under which certain individuals “acted as off-the-books lobbyists to senior White House officials” in order “to secure a pardon or reprieve of a sentence” for someone else. In a related “bribery conspiracy scheme,” an individual “would offer a substantial political contribution in exchange for a presidential pardon or reprieve” and someone in the White House Counsel’s office would then “help ensure the [attorney]’s work on behalf of [the individual]’s clemency petition reached the targeted officials.” To date, no charges have been brought.
These investigations make plain that both Congress and the DOJ have long assumed that pardons-for-bribes are criminal. At Bill Barr’s confirmation hearing for attorney general under Trump, Sen. Pat Leahy (D-Vt.) asked, “Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?” Barr responded, “No. That would be a crime.”
Immunity Ruling: Exempting Presidential Corruption
Now that the Court has ruled that pardons are “core,” it’s difficult to see how prosecutors could successfully bring such a case, assuming they even have the political courage to try. The anatomy of a crime includes a showing of both an actus reus (Latin for “guilty act”) and a mens rea (Latin for “guilty mind”). In Trump v. U.S., the conservative majority knee-capped prosecutions of former presidents on both counts, holding that evidence of a president’s use of “core” or “official” power—the actus reus—cannot be used in a prosecution. Evidence of a corrupt state of mind—the mens rea—is off the table, too. So if a president ordered SEAL Team 6 to assassinate a political rival purely for his own personal motives, the evidence surrounding that decision is now sealed from public scrutiny in a court of law. Whether he does it to protect the United States from political terrorism or extend his time in office beyond the constitutional eight-year limit is beside the point.
Consider the federal bribery statute, which makes it a crime for (1) a public official (2) to request, receive, or be offered or promised (3) a thing of value (4) for the benefit of the official (5) to influence the public official or induce them to act or omit an act that is connected to their official duties (6) “corruptly,” meaning with the intention that the official abuse their official position.
Let’s apply this law to a bribery-for-pardon scheme.
A president is obviously a public official (step 1). If the president receives or is offered money—as a campaign contribution, for example, or as a donation towards a presidential library after an incumbent leaves office (steps 2 through 4)—in order to induce the president to pardon someone (step 5) with a corrupt intent (step 6), the president would, in theory, be guilty of the crime of bribery.
Yet the immunity decision wipes out steps 5 and 6 from the equation, because step 5 is the official act of the pardon (which the majority said cannot be used in a prosecution), and step 6 is the mens rea, or the president’s state of mind (which the majority also removed from the prosecutorial toolkit).
In a concurring opinion that took issue with this aspect of the ruling, Justice Amy Coney Barrett warned that excluding “any mention” of the official act in a bribery prosecution “would hamstring the prosecution.” Roberts retorted that “of course the prosecutor may point to the public record to show the fact that the President performed the official act,” but “[w]hat the prosecutor may not do, however, is admit testimony or private records of the President or his advisors probing the official act itself.”
Roberts’s response ignored the inevitable truth that it’s impossible to prosecute a crime that requires a showing of mens rea now that the Court has banned any evidence of mens rea in a prosecution of a former president. Roberts effectively wiped out this element of Congress’s bribery law, insisting instead that “[a]llowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”
Yet that is precisely the point of mens rea. In many instances, it’s only those actions taken for the wrong reasons that amount to crimes. Buying a ski mask for your holiday trip is one thing. Buying it to participate in a bank robbery with your friends is another. Only the latter is a crime, because the reason for it—the mental state, or mens rea—converts it from a benign act to one that the law criminally prohibits.
Roberts’s response is disturbing for another reason: he assumes that the official act will somehow inevitably make its way to the public record so that prosecutors can use it—rather than being exposed through secret grand jury testimony, for example. Already, the records of pardon decisions are mostly secret. Rich’s team did research on executive pardon authority and knew that public disclosure of lobbying for presidential pardons was not required by statute.
Congress Should Require Transparency
So what, if anything, can be done now about pardons-for-bribes?
Congress can step up in at least two ways. The first reform entails amending the Lobbying Disclosure Act (LDA) to specifically cover lobbying for pardons. The second reform would involve amending the Freedom of Information Act (FOIA) to make clear that the records of pardon decisions—including communications from or to anyone seeking to influence the process or final decision—must be available for public scrutiny.
Both reforms could, in theory, be struck down by the Supreme Court’s conservative majority applying Trump v. U.S. But because these reforms would not actually restrict presidents’ ability to pardon—instead just making the reasons for pardons and the identities of those who lobby for pardons susceptible to public scrutiny—they should pass constitutional muster, much like other constraints on the pardon that the Supreme Court has previously recognized (including bans on pardons for crimes that have not been committed or on pardons that the recipient rejects, for example).
Enacted under Clinton in 1995, the LDA requires lobbyists to register with the Clerk of the House of Representatives and the Secretary of the Senate and also to file periodic reports. The law requires registration and disclosure—it doesn’t limit lobbying activities themselves, which are protected under the First Amendment’s right “to petition the Government for a redress of grievances.” Instead, if a lobbyist engages in the statutory “lobbying contacts” requiring registration, they must report information about their lobbying activities. Having determined that “representative Government requires public awareness of the efforts of paid lobbyists to influence the public decisionmaking process in both the legislative and executive branches of the Federal Government,” Congress expressly included “the President” as a “covered executive branch official” under the LDA.
Nothing in the LDA exempts lobbying for pardons from its requirements. So, people who lobby presidents for favors must comply with the federal lobbying restrictions. If they meet the requisite thresholds, pardon lobbyists should register and file reports of their efforts to secure clemency for individuals convicted of federal crimes. But this isn’t currently happening, for at least two possible reasons.
The first is that LDA violations are rarely prosecuted, which means that a cadre of “shadow lobbyists” engage in lobbying activities but figure that they won’t be held accountable for failing to register even when they are required to, making a mockery of the existing law. Others simply fall below the activity thresholds set forth in the LDA even if they are in fact engaging in lobbying.
An April 2024 report by the U.S. Government Accountability Office found that the vast majority of lobbyists do not comply with the LDA’s reporting requirements, which basically run on an honor system. The GAO found that 23% of all reports included individual lobbyists who did not disclose prior jobs in Congress or the executive branch, and 7% failed to disclose reportable political contributions. Violations carry up to $200,000 in civil penalties and five years in prison, but the DOJ rarely prosecutes violators. Of the 3,622 referrals received by the U.S. Attorney’s Office for LDA reporting violations over the prior decade, 74% still remain pending. The reasons? The government “could not locate the lobbyists, did not receive a response from the lobbyists after an enforcement action, or planned to conduct additional research to determine if it can locate the lobbyist.” With no costs for non-compliance and big financial rewards for scoring access for their clients, lobbyists have no meaningful incentive to comply with the law. That must change.
Congress probably needs, once again, to tweak the LDA. A pardon-for-bribe scandal could do the trick of getting Congress to care. But that would first require the U.S. Attorney’s Office for the District of Columbia, which enforces the statute, to step up its LDA investigations and bring enough cases to deter lobbyists from skirting the rules. In the Trump administration, potential subjects of investigation were legion.
Trump lawyer Rudy Giuliani was accused in a lawsuit of peddling pardons for $2 million each. Lawyer Alan Dershowitz, who represented Trump in his first impeachment trial, used his access to Trump to help secure 12 clemency grants. “If somebody is seeking a pardon from Clinton,” Dershowitz quipped, “you’re not going to go to somebody who is a friend of Jerry Falwell. You’re going to go to somebody who is a Democrat. That’s the way the system works.”
In the wake of the Rich pardon, Sen. Arlen Specter (R-Pa.) proposed “[a] bill to require individuals who lobby the President on pardon issues to register under the Lobbying Disclosure Act of 1995 and to require the President to report any gifts, pledges, or commitments of a gift to a trust fund established for purposes of establishing a Presidential library for that President after his or her term has expired.” It didn’t pass.
Next came the Jack Abramoff lobbying scandal, which involved a high-profile congressional lobbyist who was convicted of conspiracy and fraud for duping his own clients. It was the first-ever criminal conviction under the LDA, yet prompted Congress to strengthen the law further. The Honest Leadership and Open Government Act of 2007 did a number of things, including making it a crime for members of Congress or their employees to take or withhold an official act “with the intent to influence, on the basis of partisan political affiliation, an employment decision or employment practice of any private entity.” The criminal provisions of the LDA do not currently apply to lobbying presidents, however.
Congress could further amend the LDA to capture lobbying for pardons—even extending its criminal prohibitions to apply to pardons conditioned on some reciprocal action by a private entity.
Congress could also amend the FOIA to make public the federal records relating to pardon decisions. In several states—including Arizona, California, Colorado, Florida, and Maryland—the governor must send the legislature a statement of the reasons for clemency decisions. On its website, however, the DOJ’s Office of the Pardon Attorney states that “if the President does not issue a public statement concerning his action in a clemency matter, no explanation is provided by the Department of Justice.”
The DOJ refuses to produce pardon-related records on the theory that the FOIA exempts “deliberative communications pertaining to agency and presidential decision-making as confidential,” which the DOJ interprets to include pardon decisions. As a result, the record of federal pardons is officially withheld from the public, unless a president specifically decides otherwise.
No Justification for Executive Privilege
Courts have held that pardon documents that are actually “solicited and received” by the president or his immediate White House advisers who have “broad and significant responsibility for investigating and formulating the advice to be given the President” are privileged. The rationale behind the deliberative process privilege is that the law should protect “candid, objective, and even blunt or harsh opinions” by presidents because, as the Supreme Court has recognized, “[a] President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”
The deliberative process privilege is hard to square with pardons, however, which do not implicate national policy—unless they amount to amnesty, which entails pardons of large categories of people, like those convicted of low-level marijuana offenses or Vietnam War draft-dodgers. For individual pardons and commutations (which shorten sentences but do not “forgive” the underlying crime), the rationale behind a presidential privilege makes little sense.
The deliberative process privilege rests on the premise that federal officials won’t communicate candidly if they think their communications will be aired publicly, and that this “chilling” effect could ultimately harm the American people. But the original purpose behind the pardon power has to do with mercy for individuals caught up unjustly in the criminal justice system, which is premised on ideals of due process and transparency. A presidential pardon overrides the determination by judges and juries that, based on the evidence, an individual is guilty of a crime and should be sentenced to a particular term in prison, should pay a monetary penalty, should be banned from certain actions, or should even be sent to death. The underlying factual determinations for those convictions and sentencings are all made on the record.
What is it about an individual presidential pardon that could possibly justify strict confidentiality when the criminal justice system operates in the exact opposite way?
The answer is that there is no answer to that question. The deliberative process privilege, like criminal immunity for presidents, is a “law” that was entirely made up—by judges. To suggest that Congress, which is endowed with the power to make laws under Article II of the Constitution, cannot pass a statute tweaking the policy determinations the Supreme Court manufactured for the executive branch is hard to square with the Framers’ articulation of the respective powers of the three branches.
If nothing else, the Supreme Court in Trump v. U.S. put the separated powers through an historic stress test. If Congress is to retain its prerogative to define the contours of the federal criminal laws, and to effectively operate as a check on the presidency (short of impeachment), the pardon power is a compellingly logical—and urgent—place to start.
© The UnPopulist, 2024
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Sounds great. You might want to google US Constitution Article 2 Section 2. I don’t think Congress can do anything of he sort without an amendment.