Ask Jordan: What power does Congress have over pardons?

Congress almost certainly cannot restrict the president's pardon power by statute, according to MS NOW legal analyst Jordan Rubin, who answered a reader's question about whether lawmakers could require a conviction before a pardon, or force applicants to describe their alleged crimes first. His view is that courts would strike down both laws.

Rubin points to an 1866 Supreme Court decision describing the power as unlimited. It reaches every offense, he notes, and can be used before charges, during a case, or after a conviction. The same ruling said Congress can neither narrow a pardon's effect nor exclude any class of offenders. The recognized limits are that pardons cover only federal crimes and past conduct, and they cannot undo impeachments, which leaves Congress its own remedy: impeaching and removing a president who abuses the power.

Rubin adds that such laws could also do harm. A president could be unable to correct an unjust prosecution without forcing a confession, and Joe Biden's preemptive pardon of Anthony Fauci and others might have been barred. In Rubin's judgment, real reform would take a constitutional amendment, and voters' best safeguard is not electing corrupt presidents.

Summarized by PolitiKool from MS NOW’s reporting. Read the full story at MS NOW →