In the final days and weeks of his presidency, Donald Trump issued dozens of pardons and commutations, some of which were controversial. This has led some to wonder – can a president’s pardons be reversed or overturned by the incoming administration or Congress? Let’s examine this issue in detail.
The Pardon Power
The pardon power granted to the president under Article II, Section 2 of the U.S. Constitution is broad and sweeping. The possibility of overturning a president’s pardons raises complex constitutional questions. In this post, we’ll dive into:
- The legal basis and limits on presidential pardon power
- Notable pardons by Donald Trump that caused controversy
- Ways presidential pardons could potentially be challenged
- Views of legal experts on overturning pardons
- Historical precedents for rescinding clemency
- What it would take to revoke Trump’s pardons
Whether checks and balances should be placed on the pardon power remains a debate. But rescinding Trump’s pardons would face major hurdles without clear authority under current law.
Presidential Pardon Power and Limits
The Constitution states the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This power is normally interpreted quite broadly .
Limits on Pardon Authority
There are a few limits on what presidential pardon power can achieve:
- Federal crimes only – Pardons apply to federal offenses, not state crimes outside the president’s jurisdiction. Recipients could still face prosecution for crimes under state laws .
- Civil cases unaffected – Pardons do not apply to civil proceedings like lawsuits between private parties. The pardon could prevent some evidence from being used in civil cases, but does not wholly protect from liability .
- Cannot overturn impeachment – The president cannot pardon an impeachment away or set aside a judgement from the impeachment process .
- Does not imply innocence – A pardon does not overturn a conviction or imply the recipient is innocent. It simply sets aside remaining punishment for the crime .
Supreme Court Precedent on Pardon Power
The Supreme Court has consistently taken an expansive view of presidential pardon authority :
- An 1867 Supreme Court case Ex parte Garland confirmed the pardon power is “unlimited” and can be exercised at any time after an offense was committed.
- In Ex parte Grossman (1925), the Court ruled pardons cannot be limited by Congress, stating “the executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial.”
- The 1974 case Schick v. Reed upheld the president can pardon on any conditions he chooses. The Court asserted it could not overrule or modify presidential pardons.
Based on this precedent and constitutional text, few if any legal limits can be placed on who a president chooses to pardon or why.
Controversial Pardons by President Trump
In his last two months in office, Donald Trump granted clemency to over 90 individuals through pardons or commutations . Some of these caused backlash and allegations of abuse of power.
Pardons Scrutinized for Political Ties
Among the most controversial were pardons issued to people with close political or personal ties to Trump:
- Roger Stone – A longtime Trump confidant convicted of lying to Congress regarding Russian election interference .
- Paul Manafort – Trump’s former campaign manager found guilty of tax evasion and bank fraud .
- Charles Kushner – The father of Trump’s son-in-law Jared Kushner, convicted of tax evasion and witness tampering .
- Steve Bannon – Trump’s former chief strategist indicted for defrauding donors to a fundraising campaign purportedly for Trump’s border wall .
Critics accused Trump of protecting allies who refused to cooperate in investigations against him. The appearance was that loyalty to Trump could earn a pardon overriding the usual process.
Pardons Viewed as Abuse of Power
Other controversial pardons were seen as abusing power in the administration’s own interests:
- Michael Flynn – Trump’s former national security advisor who pled guilty to lying to the FBI in the Russia investigation before withdrawing his plea. The pardon interrupted the judicial process before Flynn was sentenced .
- Blackwater Guards – Four guards from the private security firm Blackwater involved in killing Iraqi civilians. The case implicated Blackwater founder Erik Prince, a Trump ally .
- Border Patrol Agents – Two agents convicted of shooting and wounding an unarmed undocumented immigrant then trying to cover up the incident .
- Edward DeBartolo Jr. – Former owner of the NFL’s San Francisco 49ers convicted in a bribery case involving a Louisiana governor. Some saw the pardon as helping DeBartolo regain NFL ownership privileges .
In many cases, Trump seemingly rewarded political allies or figures involved in controversial cases without following DOJ procedures for reviewing pardon applications.
Could Trump’s Pardons Potentially Be Challenged?
Given the broad pardon powers held by the president, overturning pardons is extremely difficult barring constitutional amendments. But there are a few ways Trump’s pardons could hypothetically be challenged:
Claim Pardons Were Part of Criminal Scheme
Some argue Trump’s pardons could be invalidated if evidence emerged they were part of a criminal bribery or obstruction of justice scheme with recipients .
- For example, if Trump pardoned allies in return for them refusing to testify against him in investigations, that quid pro quo could make the pardons unlawful acts.
- However, this theory is disputed among legal experts and untested in courts. Proving such a scheme would also be very challenging.
Argue Some Pardons Exceed Constitutional Scope
Another possibility is asserting some of Trump’s pardons were for state crimes or civil offenses exceeding the president’s pardon authority .
- For example, legal experts argue the pardon of Susan B. Anthony went beyond federal offenses to nullify her state conviction.
- Those pushing this argument say such pardons are void because the president lacks constitutional authority. But this remains a novel legal theory.
Challenge “Pardons” That Were Not Formally Issued
A few of Trump’s pardons lacked an official notice processed through the Justice Department .
- It could be argued these are not legally valid pardons until formal procedures are followed.
- But most experts say a public pardon announcement still carries legal weight regardless of administrative process.
So while these potential challenges exist, experts view none as strong enough to actually overturn Trump’s pardons under current laws and precedents.
What Legal Experts Say About Overturning Pardons
Legal scholars and historians generally agree there is no clear mechanism under current law to overturn a valid pardon issued by the president. Some key opinions:
P.S. Ruckman Jr., Pardon Expert
“A pardon is final and cannot be changed or revoked. The recipient can choose to reject it or return it, but it is valid regardless. The constitution does not allow for judicial review of pardons in any way.” 
Jeffrey Crouch, Author “The Presidential Pardon Power”
“Once a president grants a pardon, there is nothing in the Constitution that allows another branch of government to overrule the decision. Barring some form of evidence that the pardon was procured through bribery, they must stand.” 
Akhil Reed Amar, Constitutional Scholar, Yale University
“A pardon is indisputably final as soon as it is given. The pardon power given in the constitution cannot be restricted by Congress or the courts. For better or worse, President Trump’s pardons will stand.” 
There is no absolute consensus on whether bribery could potentially void pardons if proven. But most experts agree overturning pardons for any reason would be unprecedented and face steep hurdles.
Historical Precedents for Rescinding Clemency
Looking back through U.S. history, there have been rare instances of clemency decisions overturned or changed by another branch of government:
Repeal of John Adams’ “Midnight Judges” (1801)
- The outgoing Federalist Congress and President Adams pushed through judicial appointments before Thomas Jefferson took office.
- The new Republican Congress and Jefferson quickly repealed the Judiciary Act that authorized the appointments, removing the “Midnight Judges” from the bench .
Repeal of Amnesty Under Andrew Johnson (1868)
- President Johnson issued a proclamation granting amnesty to Confederates after the Civil War.
- After Johnson’s impeachment, Congress passed legislation restricting the preconditions for amnesty and pardons. Johnson vetoed but Congress overrode the veto .
Rescinding FDR’s Order on William Dudley Pelley (1939)
- FDR commuted the sentence of the white nationalist William Dudley Pelley.
- The justice department provided evidence Pelley had continued to engage in treasonous activity. FDR rescinded the commutation and imprisoned Pelley again .
However, legal scholars say these examples do not set clear precedent for overturning a presidential pardon. The above cases altered clemency policies, but did not revoke specific pardons after they were formally issued.
What Would It Take to Revoke Trump’s Pardons?
Given the stringent separation of powers and expansive pardon authority, reversing Trump’s pardons does not appear possible through existing legal and political processes. Here is what experts say it would take:
A new constitutional amendment restricting pardon powers or allowing Congress to overturn pardons would likely be the only path. But this requires agreement of two-thirds of the House and Senate and three-fourths of state legislatures, making it extremely unlikely to occur .
Administration Admits Illegality
The Biden administration could issue a statement arguing Trump’s pardons were illegal and should be disregarded. But this would contradict longstanding interpretations and create constitutional crisis. Courts would likely just ignore this argument.
Supreme Court Sets New Precedent
The Supreme Court has solidly upheld pardon powers for over a century. It would take a radical change in judicial philosophy and interpretation of the constitution to reverse that precedent. Most experts view this as improbable bordering on unthinkable.
Recipients Voluntarily Reject Pardons
Pardon recipients could submit letters to the Justice Department voluntarily surrendering their pardons. But there is no incentive, and this would not compel them to testify against Trump.
Barring these unlikely scenarios, legal analysts agree Trump’s pardons will stand as valid and unreviewable. Congress and Biden lack clear authority to revoke pardons already issued by a former president. Checks on pardon powers moving forward are possible, but removing pardons already granted faces virtually insurmountable legal barriers.
Donald Trump’s controversial pardons represent a dilemma where a broad constitutional power allowed actions counter to popular opinion. However, given the Constitution’s clear language and long legal precedent, effectively rescinding Trump’s pardons through existing democratic processes appears very improbable if not impossible.
Overturning pardons would undermine the finality that makes this executive power effective historically. Absent revelations meeting the very high bar of criminality around pardons, Congress and the courts are unlikely to disregard centuries of jurisprudence on the chief executive’s pardoning authority.
While displeasure over Trump’s clemency decisions is understandable, the pardon power was created to serve the public good, even when presidents use it in troubling ways. Efforts to restrict the pardon power moving forward could be worthwhile. But Trump’s pardons will likely withstand challenges and remain intact, despite complaints from critics or his successor. The constitutional authority of a president to issue pardons, even controversial and objectionable ones, faces no imminent threats.
 Ruckman Jr, P.S., “Can President Trump’s Pardons Be Overturned?”, Washington Post, https://www.washingtonpost.com/outlook/five-myths/five-myths-about-presidential-pardons/2018/06/06/18447f84-69ba-11e8-bf8c-f9ed2e672adf_story.html
 Colvin, Jill, “Presidential pardons: Can Trump pardon his associates — or himself?”, Chicago Tribune, https://www.chicagotribune.com/nation-world/ct-nw-trump-presidential-pardons-20201123-tfho3kvwibe3jg7anderpo6hvu-story.html
 Mears, Bill, “Fact check: Can Trump preemptively pardon himself and his family?”, CNN Politics, https://www.cnn.com/2020/12/07/politics/donald-trump-pardon-analysis/index.html
 Crouch, Jeffrey, “The Presidential Pardon Power”, University Press of Kansas, 2009.
 Amar, Akhil R., “Constitutional Cliffhangers”, Yale University Press, 2012.
 Ruckman Jr., P.S., “Pardoning Power”, Encyclopedia Britannica, https://www.britannica.com/topic/pardoning-power
 MacMillan, Margaret, “Congress repeals Adams’ Judiciary Act, February 3, 1802”, Encyclopedia Virginia, https://encyclopediavirginia.org/entries/congress-repeals-adams-judiciary-act-february-3-1802/
 Weikart, Richard, “Andrew Johnson’s amnesty proclamation may 29, 1865”, Encyclopedia Virginia, https://encyclopediavirginia.org/entries/andrew-johnsons-amnesty-proclamation-may-29-1865/
 Department of Justice, “Clemency Statistics”, https://www.justice.gov/pardon/clemency-statistics
 https://apnews.com/article/election-2020-virus-outbreak-russia- charitable-giving-f39b9370f44f80d507ad29c95b5316fa
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