“I know the President has the power to pardon, but can Congress pass a law that says a person must be convicted before they can be pardoned? Or a law that says they must apply for a pardon stating what criminal activity they engaged in before the President can use the pardon power, so everyone knows what crime(s) they committed?” — Bec J

Hi Bec,

I think the answer to both questions is “no.”

The pardon power is a vast constitutional authority belonging to the president.

To be sure, the power has limits. It applies to federal, not state, crimes. It applies to those offenses only after they occur; pardons aren’t permission slips to commit crimes in the future. Presidents also can’t pardon impeachments, so that is one area that the Constitution has carved out for Congress.

Beyond that, the Supreme Court has called the power “unlimited,” writing in an 1866 case that it “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.”

Highlighting the limits of congressional authority in this area (outside of impeachment), the court said in that same case, “This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.”

Against that backdrop, we can see why Congress is severely limited here.

Of course, it can impeach and remove the president for corruptly using his power. Even if a president could pardon themselves generally (a topic we explored last week), the impeachment exception to the pardon power means they wouldn’t be able to exempt themselves from those political proceedings.

With that background in mind, I think the courts would say that Congress can’t pass either of the two laws you suggest. I also think there are considerations to keep in mind that might caution against passing such laws even if Congress could, including the consideration of protecting the innocent from unjust prosecutions.

Start with whether Congress can pass a law that says “a person must be convicted before they can be pardoned.” That would run up against the court’s observation that the pardon power “may be exercised at any time after its commission” — even “before legal proceedings are taken.” That observation is supported by the plain constitutional text of the pardon power, which contains no conviction requirement.

There would be a similar problem with a law that says clemency hopefuls “must apply for a pardon stating what criminal activity they engaged in before the President can use the pardon power, so everyone knows what crime(s) they committed.”

Nothing in the Constitution says a person must apply for a pardon at all, much less that they need to describe their criminal activity in doing so. Such a law would therefore seem to interfere unduly with the president’s power. While presidents besides Donald Trump have relied on a standardized application process, whether they do so is up to them, not Congress.

Tying in the innocence point I flagged above, consider the following in thinking about both of these hypothetical laws: What if a president wants to right a wrong by pardoning someone who was unjustly prosecuted? We would not want such a person to have to confess to a crime they didn’t commit.

Or, what if there were an innocent person who hadn’t been charged with any crime, and an outgoing president was concerned that their successor was intent on railroading this innocent person? From Joe Biden’s perspective, that was the situation he faced when he preemptively pardoned Anthony Fauci and others he feared would be targeted by Trump’s second-term retribution campaign. Had those laws been in place at the time, Biden could not have issued that protective clemency.

Whatever one thinks of Biden’s or Trump’s pardons, if Congress is serious about reforming this massive presidential power, then it would need to advance a constitutional amendment to alter that power, which is firmly in the executive’s control until the Constitution says otherwise.

Ultimately, any of this would require a Congress that is willing to act. In the meantime, this discussion reinforces a point that I landed on when answering a prior question about pardons: “the best way — maybe the only real way — to combat the corrupt exercise of the pardon power is to not elect corrupt presidents.”

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