There has been widespread outcry over the military strikes on boats in the Caribbean that began this fall, with critics condemning them as illegal extrajudicial killings, war crimes, and murder. Legislators have called for an investigation. Some have called for Defense Secretary Pete Hegseth to resign. No one, however, has suggested that the president should no longer have the commander-in-chief powers under Article II of the Constitution. People seem capable of separating a misuse of the power from the need for the underlying power itself. 

Unfortunately, the same cannot be said for another power that sits alongside the commander-in-chief power in the very same clause of the Constitution: the pardon power. In the wake of Donald Trump’s egregious use of that power, commentators from across the political spectrum have recently called for a constitutional amendment to strip the pardon power from the president or limit it. 

Liberal New York Times columnist Jamelle Bouie argues that, “if there’s an issue that demands constitutional amendment, it’s this one.” Bouie believes we should give “serious consideration” to restricting the power “to limit its scope and make it more subject to the checks and balances that are supposed to structure the American system.” Bouie’s conservative counterpart on the New York Times opinion pages, David French, has made a similar argument, noting that Article II should be amended so that the president must obtain “the advice and consent of two-thirds of the Senate” to grant pardons. Jonah Goldberg, another conservative pundit, likewise argues that the Constitution should be amended, but he goes even further than Bouie and French: he would  abolish the power altogether. 

Goldberg and French both point to Biden’s abuse of the power as well as Trump’s. Goldberg accuses Biden of “allegedly just outsource[ing] to ideologues on his staff,” while French highlights the sheer number of Biden’s grants. Right after stating that “Trump is hardly the first president to abuse the pardon power,” French notes that “Joe Biden pardoned his son and commuted the sentences of thousands of other convicted criminals,” adding that “[s]ome of these pardons were defensible, but many were not.” 

I have been as critical as anyone of Trump’s misuse of this power, and I similarly called out Biden’s failings. But the misuse of the power should not be confused with the value of the power itself. Jettisoning a needed corrective for excessive criminal punishment just because some people have abused their discretion would be, well, unpardonable. 

Bouie, for his part, at least briefly nods to clemency’s value, conceding that “[a]t its best, the presidential pardon has been used to show mercy – leniency for Americans who might be unjustly imprisoned or received sentences that were not commensurate with their offense.” But this quick aside only scratches the surface of how important clemency is at the federal level. 

Clemency is a key tool for presidents to control the overreach of federal prosecutors. Because Donald Trump loudly and baselessly claims that he was the victim of a deep state witch hunt and that Biden’s DOJ was weaponized against him, it is easy to forget that prosecutors do sometimes engage in overreach. Trump is creating a boy-who-cried wolf environment in which everyone but his most loyal supporters may start to see prosecutors only as heroes, incapable of overreach. But one need look no further than Trump’s own political vendettas against Jim Comey, Letitia James, and others to see that weaponized prosecution is a risk. 

If a constitutional amendment succeeded and clemency were eliminated or required two-thirds approval by the Senate, the victims of politicized prosecutions during Trump’s time in office would find themselves without grounds for relief. Under Goldberg’s proposal, a Democratic president would be powerless. French’s Senate approval model would effectively lead to the same outcome because a president would not be able to grant a pardon without Republican support in the Senate, and it is hard to see that happening in the polarized world we live in.  

Nor is it just politicized prosecutions that need correction. One administration often has priorities that conflict with another, and clemency is one avenue to reverse policy course. For example, if Trump were to pursue local matters as federal cases to obtain longer sentences or pursue the death penalty in more cases, the only way to grant relief to the people getting those sentences would be through clemency. Indeed, it is because Joe Biden granted commutations to 37 of the 40 people on death row that we have not already seen a massive number of federal executions under Trump. 

To take another example, President Obama used his pardon power to grant commutations to more than a thousand people who were serving drug sentences that would no longer be given under current law. On the rare occasions when Congress fixes excessive sentences, it has typically not allowed for retroactive adjustment, so people continue to serve the sentences that would not be given under current law. For those people, clemency is the only option. While some people have sought relief from the courts through compassionate release, that has been an infrequent and inconsistent solution that depends on the judge. More fundamentally, the Supreme Court seems poised to cut off even that limited mechanism. With no parole at the federal level, clemency is effectively the only game in town to correct unjust sentences. 

Excessive sentences are hardly rare occurrences. With mandatory minimums that judges are forced to impose and an irrational war on drugs that gives the same sentences to couriers and mules that were designed for kingpins, we have thousands of people serving sentences disproportionate to their culpability. 

French’s suggestion that presidents should get Senate approval would destroy any hope of relief for these folks. No one wants a Willie Horton attack ad run against them, so no one wants to risk approving a grant to someone who might go on to commit another crime in the future. It is hard enough to get presidents to grant clemency, and they typically only do it in their final term. If Senate approval were required as well for a commutation, clemency would all but disappear in these cases. 

There is also the problem of collateral consequences of a conviction. Even after someone serves a sentence, a federal conviction can limit an individual’s ability to get housing, a job, or federal benefits. There is no expungement mechanism at the federal level, so the only form of relief that currently exists is a presidential pardon. 

If the pardon power is eliminated from the Constitution or requires Senate approval, we would lose all these valuable checks. And these checks are critical because, as the Framers knew, federal criminal laws and their enforcement will always be flawed. The safety valve of clemency is a necessary check. While Bouie, French, and Goldberg have focused on checking the president, they have overlooked that clemency itself is a check on the excesses of the legislature and the judiciary.  Indeed, it is why the states have some form of clemency as well. 

It is easy to see the downsides of the pardon power right now because Trump’s use of it is deplorable. With that abuse front and center, it is hard to remember there is value in this function. Indeed, for many people who are not familiar with how federal criminal law operates – and it appears French, Goldberg, and Bouie are among them – clemency’s benefits may be overlooked entirely. When these commentators do the cost-benefit analysis of clemency’s value, they see only the costs. But the benefits are enormous. 

People know the value of the commander-in-chief power and can thus separate its misuse from its overall worth. We need to do the same with the pardon power. There are better solutions to what ails clemency than its abolition or curtailment through a constitutional amendment. 

One major problem is that, for far too long, clemency has only been given to those with political connections. Only they could break through a byzantine process that favors the government. The biggest flaw with clemency is that it is used too infrequently for regular people. Mark Osler and I have been arguing for years for process and institutional reforms. The key is to create a bipartisan board to advise the president instead of relying on either the Department of Justice, which favors the convictions and sentences already obtained by its prosecutors, or people who happen to get the president’s ear. This board should be comprised of experts in sentencing, rehabilitation, re-entry, and prison records. The decisions would be informed, not ad hoc. This is the model that is used in many states, and we know it can work. It is also the basis for the Fix Clemency Act. 

In addition, Congress can and should step up to make the kind of relief now available only through the pardon power accessible through other means. While Congress cannot constitutionally restrict the president’s use of the pardon power, it can create substitute mechanisms so that relief is broadly available to all who deserve it. It can provide for other avenues, separate from presidential approval, to correct excessive sentences and expunge records. 

Granted, this only fixes one side of the problem and is not a complete solution to abuse of the pardon power when it is given to people who do not deserve it or seem to buy their way to relief. Because of the Constitution’s absolute grant to the president to be lenient with this power, the solution to that abuse requires electing people with good character who will not abuse their discretion or impeaching those who do. Trump told us he was going to pardon the January 6 insurrectionists and had a first term record of granting pardons to cronies, contributors, and Fox News favorites. People voted for him anyway, which suggests elections are no cure. 

Goldberg and French both note that the Framers’ check for abuse – impeachment – is “a dead letter in the modern era of hyper-partisanship.” French laments that “there is no real hope” the Senate will convict an American president. It is hard to disagree. That same hyper-partisanship also makes a constitutional amendment restricting or eliminating the pardon power unlikely to pass. Yet calls for such an amendment would so tarnish the clemency power itself that future presidents may decide it’s not worth being associated with its use. Indeed, that has been the real abuse of the clemency power. For almost five decades, it was largely ignored and injustices went uncorrected. Those who care about injustice should thus be as upset about the absence of deserving grants of clemency as the issuance of undeserved grants. 

The solution to the abuse of discretion is to call it out – hold hearings, educate the public, run ads, and make clemency a prominent political issue. 

Trump is a singular figure in American politics. It is hard to imagine any other politicians giving the clemency grants he has without facing career-ending blowback. Clemency should not be thrown away because Trump seems impervious to scandal. Indeed, if Trump were to manage to abuse this power for eight years and then became the reason no future president could use it, that would be the most unforgivable outcome of all.