The impeachment process is the primary method the United States Congress may use to hold a sitting president accountable for misconduct. However, because the current Congress is split almost evenly between Democrats and Republicans, and because we are operating in a hyper-partisan environment, it is difficult to imagine two-thirds of the U.S. Senate convicting a president through the impeachment process. Too many Senators would need to take action against the de facto leader of their own party. Removal of a U.S. president via impeachment and conviction has never occurred, and it is unlikely to happen anytime soon. For this reason, in our current political environment a president would likely only face accountability for criminal acts after leaving office. If the president self-pardoned at the conclusion of his time in office, a post-presidential prosecution of the crimes he committed during his administration’s tenure could be blocked. The plausibility of this scenario is why a constitutional amendment limiting the president’s pardon power is needed to deter executive misconduct.
The American people can change the legal architecture of the United States by amending the U.S. Constitution. The Framers intended the document to be open to revision. Once a constitutional change is made, Congress cannot overrule it, the president must abide by it, and the Supreme Court must enforce it through its jurisprudence. The only way to undo the change is by the American people passing another constitutional amendment, as occurred with the repeal of prohibition.
The federal Constitution has not been amended since 1992. The Framers rightly made this most potent of changes to the law of the land difficult to achieve. Two-thirds of the U.S. Congress and three-quarters of the nation’s state legislatures must approve a proposed constitutional amendment for it to become law. In 2019, with the American public politically polarized and the U.S. government in a state of partisan gridlock so severe that the major parties cannot even reach agreement to keep the federal government operational, it seems implausible that any proposed constitutional amendment could reach the necessary legal thresholds to pass into law.
However, there are reasons to believe that the American people could actually reach sufficient agreement to support a Constitutional amendment to prevent presidents from pardoning themselves, based upon the principle that no American citizen, even the President, can be above the law. Unfortunately, the language in Article II, Section 2 of the U.S. Constitution establishing the executive pardon power does not specifically exempt the president from pardoning himself (the only clear limitation on the power is that the president cannot undo a Congressional impeachment of himself or any other public official). As a result of this ambiguity, Constitutional scholars are split on whether the president has the legal authority to self-pardon. A president might get away with a self-pardon if a majority of the Supreme Court chose not to intervene by interpreting the action as unconstitutional (which it easily might do, for reasons ranging from high-minded constitutional analysis to low-down partisan political calculation).
The popularity of populist political candidates like Donald Trump on the Right and Bernie Sanders on the Left demonstrated that the American public increasingly suspect that the elites are self-dealing at the expense of the public interest and that the political system is “rigged” to prevent major changes from taking place. As historian Michael Kazin notes, “every major ‘populist’ insurgency is a warning about serious problems festering in our politics.” Of course, the ideological tenets and targets of this populist energy vary substantially. But a common thread is the idea that people holding high government offices are getting away with misconduct, and the notion that the public must intervene in order to prevent them from exercising unfair privileges.
The populist Left favors the restriction of public officials’ ability to take corporate money, and it favors the impeachment of President Donald Trump, as part of a crackdown on what journalist Eric Levitz called a “culture of elite impunity.” The objectives of the populist Right are less clear, given the split between a largely anti-Trump conservative intelligentsia and a fervently pro-Trump conservative base. Nevertheless, there seems to be broadly popular sentiment among conservative Americans that past Democratic administration officials, such as former President Barack Obama and former Secretary of State Hillary Clinton, should be susceptible to prosecution if they have engaged in severe legal misconduct. Some of the conspiracy theories that allege lurid and systemic misconduct by these so-called “liberal elites” are completely ludicrous and downright loony, but if there is any possible upside to their popularity, it is the fact that the American people agree that people in power should be held accountable if they can be empirically proven to have engaged in criminal behavior. There seems to be a growing populist bipartisan consensus that elites, even presidents, should not be above the law.
This sentiment hopefully provides the basis for amending the constitution to place an explicit limit upon the executive pardon power in the form of a prohibition of a president pardoning himself (or herself). Unfortunately, the process of passing a constitutional amendment is lengthy and difficult. The struggle for the Equal Rights Amendment in the 1970s lasted for years before it finally fell short of the necessary number of state legislative ratifications needed for it to become law. My proposed amendment would not likely be passed in time to prevent President Trump from pardoning himself. Indeed, were the main rationale for the amendment understood to be an attack on Trump, it would likely fail to get sufficient Republican support (at both state and federal levels) to pass into law. The initiative might have to wait until Trump leaves office to receive the necessary bipartisan support for successful passage.
But the impetus for the amendment’s initial momentum could indeed be the current norm-violating conduct of the Trump administration, which is forcing many Americans to consider closing potential loopholes in the Constitutional framework in order to erect necessary guardrails to protect against unchecked executive power. Scholars Julian Zelizer and Kevin Kruse argue that current presidential scandals demonstrate that Congress needs to take action to assert itself against an imperial presidency, as it previously did in the aftermath of Watergate. I believe that a constitutional amendment restricting the president’s pardon power could be a key part of this movement to prevent the president from acting with near-monarchial legal impunity.