The Uses and Abuses of the Pardon Power

Saikrishna Bangalore Prakash’s new book, The Presidential Pardon: The Short Clause with a Long, Troubled History (2026), does two things very well. First, it usefully summarizes the history and law of the presidential pardon power in a concise and accessible way. Second, it highlights the pardon power’s problematic modern record; notwithstanding the book’s title, its most potent focus is on the pardon power’s troubling recent history. 

The recent flood of pardon controversies shows no signs of abating. If anything, it is likely to intensify in the final two years of President Trump’s term. The Presidential Pardon is therefore essential reading to understand and contextualize what has happened and what may happen regarding presidential pardons. 

Prakash begins by surveying the pardon power’s purposes and foundations across history, especially in England and the American colonies. Next comes a chapter on “Parsing the Pardon Power,” in which he walks through the Pardon Clause’s contours and limits. Although mostly descriptive and doctrinal, this section includes Prakash’s bold assertion that, properly read, the Pardon Clause empowers presidents to pardon civil fines, not just criminal penalties. 

Prakash also debunks an often-repeated misinterpretation: that a pardon is necessarily a declaration of the recipient’s guilt and that accepting a pardon is necessarily an admission of guilt. Although historically most pardons have fit this description, presidents can and do use pardons to preempt prosecutions they deem unwarranted, or to exonerate people.  

The Presidential Pardon then turns to history, examining George Washington’s “measured, cautious, thorough” approach to the pardon power and the more politicized approach taken by his immediate successors. Prakash next skips forward to President Andrew Johnson, then to Presidents Ford, Bush, and Clinton. Other presidents’ pardons could offer lessons as well, but this is a short book, and these are surely the highlights. 

The heart of The Presidential Pardon lies in its second half, which recounts and critiques controversial pardons by Presidents Biden and Trump. In the preface, Prakash notes that his thesis extends the concern he expressed in The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers (2020): that modern presidents are “sacrificing the rule of law in pursuit of the incumbent’s interests.” Thus, he writes, pardons are “increasingly a weapon of partisan politics and personal aggrandizement.” Ample evidence supports this assessment, and The Presidential Pardon fairly presents both the Biden and Trump pardon records in this context. 

Prakash highlights several features of the current pardon landscape. One is increased White House control over the process. As described in the historical section of The Presidential Pardon, early presidents were besieged by throngs of pardon-seekers. It made sense to delegate the vetting so that presidents could focus on weightier matters. In time, the Office of the Pardon Attorney in the Department of Justice was given the responsibility of screening requests and making pardon recommendations to the president. 

The direct path to the president always lingered as an option, though. Prakash describes in his “Our Pardon Dystopia” chapter how, in recent years, presidents—particularly President Trump—have increasingly favored this route. This shift has gone hand in hand with a disturbing rise in what Prakash calls the “pardon lobby”: influence peddlers who charge their clients vast sums to lobby the president for clemency. He also notes the rise in “cash for clemency,” as wealthy contributors to campaign war chests and presidential libraries just so happen to get favorable treatment. 

The “Dystopia” chapter also addresses self-pardons (the pardon-related topic that has been my principal focus). President Trump has made it clear that he believes he has the power to pardon himself, and it would not be surprising if he attempted to do so on his way out of office in 2029. Whether presidents can validly pardon themselves remains one of the great unanswered questions in this corner of constitutional law, and Prakash sets out some of the arguments on both sides. He slightly favors the reading that permits self-pardons. 

One textual argument that The Presidential Pardon unfortunately does not consider is that, by definition, “grant[ing a] pardon” must be bilateral—something that one can only do for someone else, like making a donation (another word from the same Latin root). While the Constitution does not explicitly bar self-pardons, it does require that pardons be pardons. Similarly, pardons can only be given for past acts, not future ones; the Constitution does not say this explicitly, but it is inherent in the notion of what a “pardon” even is. 

Prakash’s central notion is that the current sorry state of the pardon power stems from a larger problem: decaying norms, as tribalistic partisan politics erode the rule of law. To be sure, as The Presidential Pardon notes, President Biden’s preemptive pardons of his family members drew criticism from Democrats. So too did President Trump’s pardons of the most violent January 6 defendants draw criticism from Republicans. But, as is typical in our current political era, the strongest criticism came from the other side of the aisle, and the parties eventually closed ranks behind their respective presidents. The alternative—uniting behind common constitutional principles and holding all presidents accountable for abusing their powers—was never in the cards. 

The book closes with consideration of potential reforms. Unfortunately, the partisan landscape dims the prospects for effective solutions. There are two distinct problems: not enough “good” pardons (merciful ones that relieve people of unwarranted criminal consequences) and too many “bad” ones (craven ones that reflect presidents’ personal agendas). Prakash offers some creative solutions to the first problem, such as Congress legislatively endowing other government actors with a parallel power to pardon, thereby increasing the number of good pardons. But making a serious dent in bad pardons would require amending the Constitution, which Prakash knows would require a bipartisan consensus that is currently difficult to imagine.  

Although The Presidential Pardon does an excellent job of contextualizing the pardon power within the current political climate, I wish it had done more to situate and sketch the pardon power’s place in the larger constitutional structure of the presidency. Doing so would strengthen Prakash’s arguments about the erosion of the rule of law in our polarized political era. 

One of the pardon power’s most notable features is its unilateral quality. Almost everything else the president does requires others’ assent or cooperation. To staff the executive branch, the Senate must confirm the president’s nominees. To give presidents authority, Congress must legislate. When presidents rely on their executive authority, they typically must rely on the “deep state” to carry out their orders. For controversial presidential actions to stand, courts must reject legal challenges to them. In contrast, when a president declares that he is pardoning someone, it just happens. Congress cannot restrict him, courts do not review the merits of individual pardons, and pardons require little implementation to take effect. For someone of President Trump’s disposition, the ability to move a pen and immediately have his personal desires take legal effect is uniquely compelling. 

There is still one check that can subject pardons to the rule of law: impeachment. In his description of the Pardon Clause’s creation in the 1780s, Prakash highlights several prescient warnings from anti-Federalists about the potential for presidents to abuse the pardon power. Even Hamilton, in Federalist 74, conceded that there was some risk in giving presidents the power to pardon their own co-conspirators. But Prakash does not highlight the Federalists’ reliance on impeachment as the designated mechanism for constraining would-be abusers of the pardon power. 

At the Constitutional Convention, future Attorney General Edmund Randolph moved to restrict pardons for treason, warning that giving the president such power was “too great a trust. The President may himself be guilty. The Traytors may be his own instruments.” In response, future Supreme Court Justice James Wilson said that “If [the president] be himself a party to the guilt he can be impeached and prosecuted.” Wilson’s side carried the day. 

The Framers trusted presidents with great power, despite the potential for abuse. To the extent they did not trust presidents, they trusted Congress to restrain them through the impeachment process. But the replacement of principle with partisanship has severely degraded impeachment as a meaningful check on presidents. Because the parties are so polarized, it has never been easier to secure a simple majority in the House to impeach presidents (one reason why President Trump has been impeached as many times as all his predecessors combined). But this same polarization has made it more difficult than ever to obtain the two-thirds majority required for conviction in the Senate. Presidents can now act with the assurance they will not be held to account by Congress in the way that the Framers expected. This feature of the modern federal government is the principal reason why the pardon power has entered the era Prakash so aptly describes as dystopian. 

Brian C. Kalt is Professor of Law and the Harold Norris Faculty Scholar at Michigan State University College of Law. He is the author of Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (Yale 2012).