In America, if the president likes you enough, you are allowed to commit crimes. It’s usually not discussed that plainly when kids are taught about the basics of our constitutional system. But Article II, Section 2 of the U.S. Constitution says clear as crystal that the executive has the “power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”

That’s pretty sweeping. There’s not even any pretense built in that the president needs a good justification to issue a pardon. As long as the offense occurred at the federal level and the person pardoned was not impeached—something that can only happen to a select few public officials to begin with—there are no limits to who a president can grant this clemency to. Over the past month, we’ve seen the pardon power stretched to its natural conclusion by both a moribund outgoing president from one party and an imperious incoming one from the other. It showed that this is a power that presidents shouldn’t have at all.

On January 20, moments before the clock struck noon to mark the end of his reign, President Joe Biden issued one final edict. He proclaimed that five of his family members—three siblings and two of their spouses—would be pardoned preemptively. Biden issued similar pardons to members of the commission that investigated the January 6, 2021 Capitol riot, as well as Dr. Anthony Fauci, who has become a target on the Right due to his implementation of COVID safety measures. None of these people had been charged with any crimes, but they were nevertheless granted a “full and unconditional pardon for any nonviolent offenses” dating back to 2014. 

Biden also issued a pardon last year to his son Hunter, who had been convicted on a gun charge and pled guilty to several tax charges. Though he didn’t just pardon his son for crimes he’d already been convicted of, but any others he might have committed dating back to 2014—a noteworthy period of time since this was around when Hunter is alleged to have begun corruptly profiting from his position on the board of a Ukrainian gas company.

This sort of preemptive pardon is rare throughout presidential history. Before Biden’s preemptive pardons, there were only a few analogous instances of presidents issuing pardons for people who had not been charged with crimes. Biden’s pardon has most frequently been compared to Gerald Ford’s pardon of Richard Nixon for any crimes he may have committed during the Watergate scandal. However, a substantial difference is that, in Nixon’s case, he would almost certainly have faced criminal charges after leaving office. It’s not clear what charges Biden expected members of his family or the January 6 Committee to face—he merely referenced the possibility of “unjustified and politically motivated prosecutions” against them. This is a pretty reasonable thing to worry about since Trump had promised “retribution” against his political foes. (Although, in Hunter’s case—while the goal of Republicans who seek to prosecute him is obviously political—it’s certainly possible that evidence will emerge that he did commit a crime, which would make prosecution justified.)

After taking office, one of Trump’s first acts was to issue a slew of pardons himself. He granted a full reprieve to more than 1,600 of the Capitol insurrectionists who attempted to overturn his electoral loss. He extended this pardon to those who committed acts of violence on his behalf: among them were hundreds of members of militia groups, including the Proud Boys and the Oath Keepers. Some of the rioters have already met with members of Congress to discuss future careers in politics. Oath Keepers founder Stewart Rhodes says he sees a role for his group and other militias in serving as shock troops to enforce the MAGA agenda, including helping to round up immigrants. Enrique Tarrio, the leader of the Proud Boys, who had a twenty-year sentence lifted, “joked” (in the words of the Wall Street Journal at least) that he’d accept a cabinet position as Trump’s “Secretary of Retaliation.”

Since these pardons were issued, I’ve been thinking a lot about a worrying counterfactual. We’ve just seen a president issue pardons for hypothetical criminal charges. And we’ve seen a different president issue a pardon for a gang of violent thugs because they tried to overturn an election result on his behalf. But what if Trump had had the foresight back in 2021 to do both at once? What if, instead of merely whipping up a crowd who then spontaneously attacked the Capitol, he told them, flat out, that if they overran the building and stopped the certification of his opponent’s victory, he’d grant them all pardons for any crimes they committed in the process? It seems that this would have been in his power to do. Biden was able to pardon people who had not yet been accused of any crimes. And Trump was able to pardon the rioters because their crimes took place on federal grounds. Only a fraction of the people amassed at the Capitol—about 2,000 to 2,500—are estimated to have broken inside the building on that day in 2021. But there were more than 120,000 angry Trump supporters assembled on the National Mall. Imagine how many more of them might have been willing to take the risk of storming the building if the president promised them immunity from prosecution.

Fortunately, this didn’t happen—presumably because Trump didn’t have the foresight to anticipate that his supporters might actually take violent action to reverse an election he’d told them was stolen. But I struggle to think of any constitutional means of preventing it if Trump had decided to. I reached out to Mark Osler, a legal scholar at St. Thomas University who studies clemency, to ask if there were any power within the Constitution that could stop something like this. He told me that, indeed, “There is no precedent that prohibits a president from doing what you describe, so long as pardons aren’t issued for future actions. Congress does not have a check on the use of the pardon power, other than impeachment.”

Impeachment is no sure thing, especially in a case where the House is controlled by the president’s party, as it is right now. And even if there were enough votes to impeach, impeachment is a process that has historically taken weeks if not months to be fully carried out. (This is before you even consider that, in this particular scenario, the Capitol building has been occupied. Where would the impeachment proceedings even take place?) As long as Trump issued his pardons before that happened, the insurrectionists would presumably be in the clear, at least on federal charges, since pardons can’t be reversed by the next president. As for whether the president himself could face charges after being removed from power—the Supreme Court has since ruled that, so long as he carries out crimes through “official acts” within his constitutional authority, he has “absolute immunity.” In the majority opinion, Chief Justice Roberts cited the issuing of pardons as one of those official acts. 

So hopefully Donald Trump is not a Current Affairs reader, because I think I’ve just laid out a pretty foolproof way for him to carry out a successful coup.

But even without imagining such democracy-ending nightmare scenarios, it’s worth questioning the principle that the president should get to override the entire legal system at their own discretion. In a country that was ostensibly founded in a rebellion against monarchy, the right of one executive to single-handedly decide the punishment or reprieve of individuals—overriding sometimes years of due process with the stroke of a pen—feels more in line with the royal prerogative than anything we’d associate with an enlightened republic. 

The inclusion of such a broad pardon power was not without its share of controversy. Anti-Federalists like Patrick Henry, George Mason, and Samuel Adams were vehemently against it, believing it could easily be abused. And Alexander Hamilton argued that at the very least, treason should be excepted from the pardon power—an idea that New York delegates proposed, but which never made it into the final text of the Constitution. But in general, they supported it as a means for the elected president to intervene and offer mercy in cases where the judicial system had made an unjust decision.

There’s certainly no shortage of injustices within our criminal punishment system on a regular basis. Race and class influence the legal process from beginning to end—determining who is more often targeted by police, who can afford adequate legal representation, and how severe their sentence will be. A staggering number of people are also falsely convicted of crimes. Studies published within the last decade have found that between 4 and 6 percent of people convicted of crimes are innocent, meaning that there are probably around 60,000 innocent people currently languishing in a prison cell. And that doesn’t even take into account all the people in prison for things that shouldn’t be crimes, like drug offenses or exposing government wrongdoing by publishing classified information.

Presidents sometimes pardon these people. Right after pardoning his family members, Joe Biden also commuted the sentence of Native American activist Leonard Peltier, who was convicted of murdering two FBI agents in 1975 in a case that was rife with prosecutorial misconduct. (Though, notably, this was not a full pardon. Peltier was merely transferred to home confinement.) Biden also pardoned everyone convicted of simple marijuana possession at the federal level back in 2022 and issued clemency to around 2,000 more non-violent drug offenders with just three days left in his term. Back in 2017, President Obama famously commuted the sentence of Chelsea Manning, who was convicted of “espionage” for leaking evidence of U.S. war crimes and sentenced to 35 years in prison. He also issued a less famous pardon to James Cartwright, the former vice chairman of the Joint Chiefs of Staff, who leaked info about a cyberattack the U.S. committed on Iran’s nuclear program to the New York Times. Going back further, presidents have used the pardon power to right the wrongs of previous administrations, like when Jimmy Carter issued blanket pardons to people who evaded the draft during the Vietnam War.

It’s understandable why someone who believes that prisons are inherently unjust and violent institutions might support the idea of the pardon, since it ultimately reduces the number of people who are in prison. But it does nothing to reform the injustices of the prison system itself. The goal should not be to simply let everyone out of jail, but to introduce alternative forms of accountability that are more rehabilitative. Pardons don’t do this. The people who receive them get out of jail free, while the people who don’t remain in a system that is still just as unfair as it was before.

And while serving justice is often the stated reason presidents issue pardons, cloistering such immense power in the hands of a single person means that it will be used entirely to suit their ends. Sometimes that may align with what is right. But presidents are first and foremost concerned with the accumulation and maintenance of their own power, and so their decisions on who to pardon will be greatly influenced not by the pure question of right and wrong, but whether it is politically beneficial to them.

Bill Clinton is a prime example of someone who was ruthlessly self-interested with his issuance of pardons. While running for president in 1992, he was under immense pressure to use his power as governor of Arkansas (yes, some governors can also issue pardons or commutations for state crimes) to save a severely mentally ill man, Ricky Ray Rector, from death row by commuting his sentence for murder. It was abundantly clear to anyone that knew Rector that he had the mental capacity of a small child. But despite desperate pleas from Rector’s lawyer, Clinton’s friends, and civil rights leaders like Jesse Jackson, Clinton—who was concerned with appearing “tough on crime”—refused to stop his execution.

It was not a just decision, but it was arguably one that paid off. Clinton would become the president, and at the end of his term, he’d use the presidency’s awesome power to issue pardons to political allies and wealthy elites. Most infamously, he pardoned Marc Rich, a billionaire financier who fled the country after being indicted for $48 million worth of tax evasion. At the time, it was widely speculated that the pardon was the result of Rich’s ex-wife being a prolific donor to Clinton and the Democratic Party. Clinton did extend his mercy to some ordinary people—specifically some drug offenders serving long sentences under his own mandatory sentencing laws. But more often, it was reserved for insiders. Just as Biden pardoned his son, Clinton pardoned his brother Roger for a drug-trafficking conviction. He also gave pardons to close associates and members of his administration, like Housing and Urban Development Secretary Henry Cisneros, who was convicted for lying about payments he made to a mistress, or CIA director John Deutch, who faced prosecution for mishandling classified information. And he made pardons as payback for political favors—most notably real estate investor Susan McDougal, who he agreed to pardon if she agreed not to implicate him in the Whitewater scandal.

Trump has used his pardon power in even more brazen ways than Clinton for his own personal benefit. According to a study by the Lawfare blog, more than 100 of the 237 people Trump pardoned during his first term were granted to people with personal connections to the president or who advanced his political agenda in some way.

For instance, in exchange for their loyalty in the investigation of his connections to the Russian government, Trump dangled pardons in front of close allies like Michael Flynn, Paul Manafort, and Roger Stone, which he ultimately delivered on. He pardoned propaganda filmmaker Dinesh D’Souza, who went on to make a film promoting Trump’s outlandish  theories about the 2020 election being stolen from him (Ones D'Souza was later forced to admit were false). He pardoned loyal political operatives in the Republican Party, like Elliott Broidy, a top fundraiser for his campaign and the Republican National Committee, who pleaded guilty to accepting millions of dollars to secretly lobby the Trump administration on behalf of Malaysian and Chinese interests; Rep. Duncan Hunter, who stole $250,000 from his own campaign; and Rep. Chris Collins who was convicted for insider trading. He pardoned people because they happened to be close to his family, like Charles Kushner, a real estate billionaire and the father of his son-in-law Jared Kushner.  Not only was Kushner caught committing voluminous amounts of tax fraud, but he also hired a sex worker to sleep with his brother-in-law so he could blackmail him into not testifying about it—but that didn’t seem to cause Trump any hesitation. 

Trump even pardoned war criminals, like the four military contractors who were convicted of massacring 14 Afghan civilians, including two children, in Nisour Square in 2007. The company that employed them, Blackwater, is owned by a top confidante and campaign donor, Erik Prince. And at the behest of newly-minted Defense Secretary Pete Hegseth, who was then a lowly Fox News schlub, Trump also pardoned Navy SEAL Eddie Gallagher, who was convicted for mutilating the corpse of a 16-year-old captive in Iraq. 

And of course, his very first pardon in 2017 was granted to Joe Arpaio, the notorious Maricopa County, Arizona sheriff who instituted what the Department of Justice determined to be “the worst pattern of racial profiling in U.S. history,” and oversaw a system of jails that routinely abused inmates, including children, in indescribable ways. Arpaio’s department ferociously targeted Latino residents, dumping them in an infamous outdoor prison, which Arpaio himself referred to as a “concentration camp.” When a court ordered Arpaio to stop his illegal profiling, he refused, and was sentenced to six months for contempt of court. But Trump’s pardon ensured he never spent a day in prison.

It’s likely that Trump also directly accepted bribes in exchange for pardons. In 2023, a woman who accused Rudy Giuliani of sexual assault also alleged that Trump’s attorney had mentioned a scheme to “sell” pardons for $2 million apiece and split the money with Trump. This doesn’t seem to have been made up, since years before the allegation was made public, a CIA officer who was facing criminal charges alerted the FBI that Giuliani had made this exact offer to him. We also know that Trump’s associates have profited directly from the president’s ability to issue pardons. In 2021, the New York Times reported that several lobbyists and lawyers in Trump’s orbit agreed to influence him to grant pardons to wealthy criminals in exchange for money. 

One lobbyist, Brett Tolman, who advised the White House, received “tens of thousands of dollars” to help several well-connected clients get pardoned. One of those clients was Ross Ulbricht, the founder of Silk Road, a dark web marketplace that was primarily known for its sale of drugs, but which also facilitated the sale of illegal guns and allowed users to hire assassins. Trump ended up granting Ulbricht a pardon after coming back into office earlier this month, but he was reported to have been considering pardoning him as far back as 2020. This means that there’s a very good chance that Trump ended up pardoning someone whose website has likely led to multiple deaths because a lobbyist was paid to influence him.

It’s well known that Trump is highly susceptible to flattery, and Democratic politicians who have ended up in legal trouble have begun sucking up to him, likely in hopes of receiving a pardon. Shortly after being indicted on corruption charges last year, New York’s mayor Eric Adams began aggressively courting Trump by praising his immigration policies and saying that previous New York mayors were wrong to oppose him. After Trump’s victory, he made a trip down to Mar-a-Lago and ditched multiple important Martin Luther King, Jr. Day events in New York City to attend Trump’s inauguration. And on Wednesday, after he was sentenced to 11 years in prison for accepting lavish bribes,  New Jersey’s former Senator Bob Menendez said “President Trump is right—this process is political and it's corrupted to the core. I hope President Trump cleans up the cesspool and restores the integrity to the system.”

Whatever good may come from pardons, they are completely dependent on the whims of the president in charge and who they happen to know. One very deserving person to whom Trump granted clemency was Alice Johnson, who became involved in a cocaine ring in the 1990s after she lost her job and became desperate for money. She was given an outrageous life sentence, which Trump commuted. This was unquestionably the right thing to do. But Trump didn’t do it because of some universal belief that nobody should be given a life sentence for selling drugs. He did it because Kim Kardashian brought the case to his attention and met with him about it in the Oval Office. How many other people who are equally deserving of mercy wake up every day in a prison cell simply because no famous celebrity knows about their case?

  We can all imagine a hypothetical scenario where a president uses pardons purely as righteous instruments to correct injustices against the downtrodden, and does so without regard for whether it is politically popular. We’ve seen flashes in which presidents use them this way. But even when the ends are just, whether that justice is served is entirely arbitrary, subject to forces as cruel and random as a president’s polling numbers or what celebrity he wants to impress. This is not a recipe for anything approaching equal justice, and too often, it is yet another tool for the powerful to avoid the most basic accountability.

There still should be ways for people who are unjustly convicted of crimes to receive clemency. But it should not come from the executive’s whims, or any single person. Some states require clemency boards to either advise the governor on who to pardon or issue pardons themselves once specific criteria are met. Usually these officials are appointed by governors themselves, which is not ideal. If a similar system were adopted at the federal level to replace the president’s unilateral pardon power, the people in charge of such awesome power should be democratically elected, lest they merely become a rubber stamp to legitimize whatever the president wanted to do anyway.

At the very least, rules should be put in place to prevent the flagrant self-dealing that the current pardon system allows. Presidents should not be allowed to pardon members of their family or their political associates. It should be a power reserved to help ordinary people in cases where the justice system has wronged them, not as a magic “Get Out of Jail Free” card dispenser for the president’s best friends. 

Perhaps I am overly optimistic, but now may be the best time in years for someone who wanted to pass a pardon reform amendment through Congress. Democrats should want to introduce checks on President Trump’s powers. And Republicans, who just watched Biden pardon his family and other political associates to avoid their wrath, should want to put a check on the power too for the next time a Democrat is in the White House. Regardless of how it happens, it’s clear that we can no longer allow our increasingly lawless political class to have access to a power whose sole purpose is to subvert the law altogether.