The reach of the presidential pardon power has been much in the news of late (for a variety of reasons). It is well established that the pardon power is plenary; that it can be exercised in advance of formal criminal charges being filed; and that it does not extend to state crimes; but there remain many unsettled (and unsettling) questions. Can a president pardon himself? Can a pardon, though perfectly lawful in itself, constitute obstruction of justice? Can a president use a pardon, issued in advance of criminal activity, to insulate an actor from criminal liability before the criminal act is even complete? These are interesting questions, but I intend to address a related, but broader, question: To what extent may Congress, via legislation, regulate the president’s pardon power? Though it is well established that the power is plenary, does that insulate the pardon power from any Congressional regulation or oversight at all? And if the answer to this question is “no” (and it likely is), then what sort of Congressional regulations and oversight are permissible? I will address these issues in this short Essay and offer some suggestions for how Congress might lawfully regulate, or at least regularize, the pardon power.
Glenn Harlan Reynolds is a graduate of the University of Tennessee and Yale Law School. He is currently the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. He is the author of numerous articles published in, among others, the Columbia, Penn, Virginia, Washington University, and Northwestern Law Reviews, as well as in publications like the Wall Street Journal, the Atlantic, the New York Times, and Legal Affairs. He writes a weekly column for USA Today.
Glenn Harlan Reynolds, Congressional Control of Presidential Pardons, 2 Nev. L.J. Forum 31 (2018).