On August 21, Congressman Jamie Raskin, the ranking member of the House Judiciary Committee, released a report entitled “Pardons, Inc.: How Trump and His Clemency-for-Cash Racket Let White-Collar Criminals and International Drug Dealers Walk Free and Dodge Billions in Restitution Owed to Their Victims.” As the title suggests, the report documents the president’s startling abuse of his constitutional power to grant pardons and reprieves.
If that problem were limited to Trump, we might look to the ballot box to remedy it. But it is not.
That is why it is time to reform the president’s pardon power to bring it more in line with the requirements of constitutional governance. That power was modeled after the prerogative of British monarchs. For that reason, it has always stood out and seemed anomalous in this country.
As Chief Justice John Marshall explained in 1833, in the first Supreme Court decision about the scope of the pardon power, “The power of pardon in criminal cases had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance. We adopt their principles respecting the operation and effect of a pardon.”
“A pardon,” Marshall continued, “is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.”
And from that time until now, the president’s exercise of that power has been unreviewable. Once granted, neither Congress nor the courts can undo it.
Some advocate amending the Constitution to change that. However, constitutional change to limit the pardon power is neither feasible nor necessary to address the problems highlighted in Raskin’s report.
A better approach is laid out in the so-called No Payoffs For Pardons Act, introduced in Congress on August 6 by Senate Democratic Leader Chuck Schumer and Democratic Representative Joe Morelle, who serves as his party's leader on the Committee on House Administration. Their bill would mandate disclosures by recipients of clemency of “financial gifts made in connection with their clemency, both at the time it is granted and for four years afterward.”
“Publicity,” as Louis Brandeis wrote in 1913, “is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” What he said then is as true today as it has ever been.
Disclosure would deter the kind of pay-for- play that Raskin highlights and promote political accountability for presidential abuses of power. While the path to that kind of reform will not be easy, it is important to make the case for its necessity.
Raskin’s report is a step in the right direction.
Other critics of President Trump’s use of the pardon power often focus on what he did with regard to the January 6 insurrectionists on the first day of his second term. However, Raskin is concerned with more than that.
“President Donald Trump and a coterie of MAGA insiders,” the report observes, “have built up in his second Administration a cottage industry of shady operatives, big campaign donors, and lawyer influence-brokers who lobby the White House and the Trump family to secure presidential pardons and commutations on behalf of unrepentant white-collar fraudsters and unbending con men, corrupt foreign government officials and kleptocrat presidents, and international narcotraffickers.”
The report noted that the president has ignored the standard route for clemency requests and that “the MAGA pardon underworld operates entirely on the supplicant’s willingness to pay for access to the President and his associates in his inner circle.”
And it concludes that Trump’s abuse of the pardon power “robs victims of nearly $1.7 billion in restitution and fines, and effects a massive redistribution of wealth in favor of convicted criminals, MAGA insiders, and the President himself.”
That’s a pretty damning indictment and one that calls out for reform. Such reform is long overdue.
The rogues’ gallery of presidential pardons has a long history.
For example, in the notoriously corrupt administration of President Warren Harding, Attorney General Harry Daugherty, though not the president himself, was tried (but not convicted) for taking bribes in return for recommending pardons to Harding. Fast forward to 2001, when Bill Clinton pardoned financier Marc Rich, soon after his ex-wife contributed $450,000 to Clinton’s presidential library.
Even some of Clinton’s closest allies were appalled. One, Senator Pat Leahy labeled it “terrible, “inexcusable,” and “outrageous…”
Then there was George W. Bush, who announced he was pardoning convicted fraudster Isaac Toussie in 2008, close to the end of his term, after Toussie’s father made substantial contributions to Republican politicians. When that came to light, the president claimed he was unaware of it and took the extraordinary step of rescinding the pardon before it was finalized.
Abuses of the clemency power have not been limited to American presidents. In 1979, aides to Tennessee Governor Roy Blanton were indicted and convicted of “operat(ing) a scheme to sell pardons and commutation of jail sentences during Blanton's four years in office.”
Of course, as Raskin’s report points out, all of that pales in comparison to what has happened since Trump returned to the Oval Office in January 2025.
The No Payoffs for Pardons Act is an important response. It requires that “Not later than 90 days after receiving executive clemency for an offense against the United States, each clemency recipient that has provided a covered benefit to a covered recipient… shall file with the Attorney General a disclosure report identifying each covered benefit provided to any covered recipient during the disclosure period.”
That obligation continues for four years after the grant of clemency.
The act also directs the Attorney General to make disclosure reports available “on a searchable, machine-readable website maintained by the Department of Justice….” It imposes civil and criminal penalties for failing to file the required report or for falsifying information contained in it.
Finally, it updates federal bribery law in light of the Supreme Court’s presidential immunity decision to make clear that “immunity only attaches to the President and does not extend to private individuals who corruptly offer things of value to obtain clemency, or act as intermediaries in such corrupt arrangements.”
The No Payoff for Pardons Act does not impinge on the president’s clemency power, which, as the Brennan Center for Justice explains, “is an awesome power” and “When used as intended, it is a powerful tool for justice.” The report released by Congressman Raskin shows that “it can also be a tool of greed and perversion if used inappropriately and contrary to its purpose.”
We are not powerless in the face of such corruption. Let’s work to reconcile the pardon power with constitutional government by supporting the disclosure bill now before Congress and urging state legislatures across the country to pass similar legislation.
Austin Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
