The Pardon Power: From Hamilton’s Mercy to Political Currency
Part of a series on Lawyers, Guns and Money
The presidential pardon power was envisioned by Alexander Hamilton in Federalist No. 74 as a mechanism of mercy, intended to ensure the law remained humane. However, the reality of the executive’s use of this power has shifted significantly from that original vision:
“He is also to be authorized to grant ‘reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.’ Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.”
— Alexander Hamilton, Federalist No. 74 (1788)
The abuse of the pardon is a documented systemic failure. Predecessors in both parties have exploited the power for personal or political ends:
Bill Clinton ignited a firestorm with the last-minute pardon of billionaire fugitive Marc Rich (whose wife was a major Democratic donor) and HUD Secretary Henry Cisneros, who had pleaded guilty to lying to the FBI during his background check.
Joe Biden faced backlash for commuting the sentence of Michael Conahan, the “kids-for-cash” judge, and for the 2024 full pardon of his son, Hunter Biden.
Donald Trump has taken abuse of the process to a new level, as documented in the memo The Pardon Power is Broken with two of the most troubling examples the pardoning of January 6 rioters and the 2025 pardon of Changpeng Zhao -- the crypto billionaire whose company provided infrastructure for a Trump-affiliated venture. When a pardon directly enriches the President’s own sphere, mercy becomes a transaction.
Perhaps most illustrative of the “mercy as transaction” model was the late 2025 pardon of Democratic Representative Henry Cuellar. By pardoning a political opponent, the executive effectively neutralized a bribery investigation with hopes of getting Cuellar to switch parties. Leader Hakeem Jeffries’ view on the pardon was “the right outcome has been achieved,” and Cuellar remained a Democrat.
The system is broke and can’t be fixed by Congress and the courts, partially because neither Congress nor the courts want to fix the system but also because the Supreme Court has ruled in cases like Ex parte Garland that the pardon power is “not subject to legislative control.” Any meaningful change requires a Constitutional Amendment.
In February 2026, Representatives Johnny Olszewski (D-MD) and Don Bacon (R-NE) introduced a Constitutional Amendment known as the Pardon Integrity Act. Their approach relies on a Congressional Veto, requiring a two-thirds supermajority to nullify a pardon.
While some scholars argue that even an amendment could be challenged for violating the “basic structure” of separation of powers, there is no historical precedent for a ratified amendment being overturned.
While the Pardon Integrity Act (2026) proposed by Representatives Olszewski and Bacon seeks to restrain executive overreach through a reactive “Congressional Veto,” my proposal advocates for a proactive structural shift via an Independent Pardon Review Board. The Olszewski-Bacon amendment relies on a high political bar—requiring a two-thirds supermajority in both chambers to nullify a pardon within 60 days — which risks falling prey to the same partisan inertia that currently plagues the system. In contrast, an Independent Review Board would create a mandatory “sunlight” mechanism, providing a public, investigative report on all petitions before a decision is finalized. This model, similar to successful systems in Canada and the UK, shifts the focus from back-end political rejection to front-end transparency and accountability.
Furthermore, a critical distinction lies in the scope of eligibility. While the Congressional model focuses on the power to overturn, my proposal explicitly utilizes the Constitutional Amendment to prohibit pre-conviction pardons and pardons for fugitives on the lam. By ensuring the legal process reaches its conclusion before mercy can be considered, this approach eliminates the “get out of jail free” card that currently incentivizes lawlessness within the bureaucracy. While both paths require the heavy lifting of a Constitutional Amendment to bypass current Supreme Court precedents, a structural board offers a more consistent guardrail against the “transactional mercy” witnessed in recent years than a purely legislative veto.
Despite the obvious need, the two-party system is unlikely to fully disarm a power they hope to one day wield. Given this bipartisan inertia, the only path forward may be a Constitutional Convention. The two-party duopoly is not going to support this Constitutional Convention, so the first step has to be the formation of a viable third party.
Authors Note: Best to read this memo while listing to the classic song Lawyers, Guns and Money. I am on vacation for a couple of weeks. Enjoy!
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