The House Judiciary Committee has teed up a bill that would criminalize a presidential pardon offered in exchange for anything of value — such as a witness’ silence — a key addition to legislation already slated for consideration that would empower Congress to investigate potential abuse of the pardon power.
Under the updated proposal from House Intelligence Committee Chairman Adam Schiff, a presidential pardon granted — or dangled — in order to obtain a “thing of value” would be punished under federal bribery laws. The restriction would include not just pardons but commutations — reprieves that reduce criminals’ prison sentences but maintain their convictions.
The sweeping measure is aimed at curtailing abuses of the pardon power that Democrats allege were committed by President Donald Trump in the commutation granted to his longtime confidant, Roger Stone. Stone was convicted last year of repeatedly lying to the House Intelligence Committee in its investigation of links between Trump’s 2016 campaign and Russia — a probe that also examined Trump himself.
Trump has assailed Stone’s prosecution as politically motivated, even though the Justice Department repeatedly defended it and Attorney General William Barr called it “righteous.” Democrats described Stone’s pardon as an unprecedented abuse intended to reward a close ally of the president for frustrating the efforts of investigators looking at Trump’s knowledge of a Russian interference effort that damaged his 2016 opponent, former Secretary of State Hillary Clinton.
Schiff’s proposal also requires that the Justice Department share with Congress any case files connected to a witness or suspect pardoned in an investigation in which the president — or a relative of the president — is a subject, target or witness. Such a requirement would ensure lawmakers have a chance to assess whether the pardon was evidence of self-interest or to mask potentially impeachable conduct.
The measure also includes a second update — an amendment offered by Rep. Jamie Raskin (D-Md.) that would declare presidential self-pardons invalid.
“The President’s grant of a pardon to himself or herself is void and of no effect, and shall not deprive the courts of jurisdiction, or operate to confer on the President any legal immunity from investigation or prosecution,” the amendment reads.
“It is essential that Congress clarify right now that no president of any party can use his pardon power to pardon himself or commute his own sentence,” Raskin said in a statement. “If we don’t make that essential constitutional truth clear, a corrupt and incorrigible president could embezzle from the government, take bribes for pardoning criminals, engage in foreign money laundering schemes, commit massive tax fraud, aid and abet sex traffickers, and obstruct justice by covering up all these crimes — and then simply pardon himself or herself to permanently avoid prosecution for these crimes for all time.”
Both proposals are certain to face constitutional challenges. Presidential pardon power has largely been unchallenged and construed as sweeping and unreviewable in court. The impeachment power and other checks afford to Congress is the remedy for a president who abuses pardon authority, some legal experts say. However the FBI and Congress have investigated pardons in the past, particularly President Bill Clinton’s decision shortly before leaving office to pardon fugitive financier Marc Rich.
And the Justice Department’s Office of Legal Counsel has previously indicated that it doesn’t consider self-pardons to be valid. In 1974, days before Nixon resigned, OLC determined that presidential self-pardons are improper. However, Trump has declared that he believes he has the “absolute right” to pardon himself
“As has been stated by numerous legal scholars, I have the absolute right to PARDON myself,” Trump tweeted in June 2018, “but why would I do that when I have done nothing wrong?”
Trump made a similar pronouncenment in July 2017: “While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.”
A second proposal that Democrats intend to advance Thursday would ensure that presidents are unable to run out the clock on the statute of limitations for any crimes committed before or during their tenure of office. The proposal, offered by Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), would essentially pause the clock on the statute of limitations while a president is in office.
The measure is aimed at ensuring that a president who committed crimes prior to assuming the office can still face charges for alleged criminality after stepping down — and can’t use the office as a shield from prosecution.