The issue of reforming presidential pardon power has been percolating for decades, but it came to a head at the end of Donald Trump’s presidency. In his final days in office, Trump granted pardons to nearly 150 individuals, many of whom had close ties to the former president.

The power of the presidential pardon was written into the Constitution as a safeguard against judicial decisions later deemed too harsh. It allows the president to grant clemency to individuals charged with federal crimes without seeking approval from other branches of government. The pardons are not subject to override. However, they do not apply to state prosecutions.

Although the Founding Fathers considered potential abuse of the pardon privilege, they decided it was more important that the head of state be able to grant clemency. However, the presidential pardon has garnered increased criticism over the years. Former President Gerald Ford’s 1974 pardon of his predecessor, Richard Nixon, after Nixon’s impeachment by the U.S. House and subsequent resignation was a controversial move. Some have argued that presidents have abused their pardon power to “save” individuals with whom they have a connection, such as former business partners or campaign donors.

At the end of his presidency, Trump issued pardons to Steve Bannon, his former chief strategist who was charged with defrauding donors; Elliott Broidy, a top fundraiser who was charged with violating foreign lobbying laws; and Paul Manafort, a former campaign chairman who was charged with bank and tax fraud.

“I can’t imagine the founders, in providing for pardon power for a president, anticipated that presidents would use it to reward political friends, and as a result I would hope that we could develop a tradition of more narrowly providing pardons,” Sen. Mitt Romney (R-Utah) told reporters. Romney was one of several lawmakers on both sides of the aisle who voiced support for legislation to reform the president’s pardon power. Some did so in anticipation of Trump’s pardons.

In early January, Rep. Steve Cohen (D-Tenn.), chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, introduced a constitutional amendment that would curtail the president’s pardon power.

“The framers of the Constitution included the pardon provisions as a safety valve against injustice, not as the means for a president to put himself, his family and his associates above the law,” Cohen said in a statement. “Throughout his term in office, President Trump has used the power of the presidency to benefit himself, his family and his friends. He has shamelessly and corruptly shielded himself from the consequences of his own and others’ misconduct.”

There had been speculation that Trump would pardon himself or members of his family before leaving office, although he ultimately did not. The Constitution does not allow a president to pardon himself for impeachment or from state prosecution. Trump faces multiple lawsuits, including investigations by the New York state attorney general into the Trump Organization’s finances and by the Manhattan district attorney into potential bank and insurance fraud. A federal self-pardon would not have protected him.

Cohen’s proposed amendment would limit the president’s power to pardon himself/herself as well as related family and administration or campaign officials. It would also limit the ability of the president to pardon individuals charged with crimes that had a “direct and significant benefit of the president,” said Cohen.

Although the list of Trump associates who received pardons captured headlines, advocates praised Trump for issuing clemency to several individuals serving disproportionately harsh sentences for their crimes. For example, Trump pardoned Darrell Frazier, who had served 30 years of a life sentence for drug conspiracy. While in prison, Frazier founded a nonprofit organization helping youth in Tennessee. Trump also pardoned Illinois resident Craig Cesal, who had been serving a life sentence without parole for a marijuana charge.

“The presidential pardon powers have been badly misused, but that doesn’t mean they’re inherently suspect,” wrote Slate journalist Mark Joseph Stern in an editorial advocating in favor of the presidential pardon. “It is not some obsolete relic from a simpler era, but a vital safeguard against unjust convictions and disproportionate sentences.”

With debate over criminal justice reform likely to continue in President Joe Biden’s administration, pardon power reform could be part of the conversation. For more background, see the January 2019 issue of Congressional Digest on “Criminal Justice Reform.”