skip to main content

H.J.Res. 115 (115th): Proposing an amendment to the Constitution of the United States to clarify the presidential pardoning power.


The _Washington Post _bombshell report that President Donald Trump is considering pardoning his closest family, advisors, and potentially even himself caused a firestorm on Capitol Hill in mid-July.

Two new pieces of legislation would prevent Trump from pardoning himself and issuing secret pardons, both actions which are (under most prevailing legal interpretations) currently allowed under federal law.

Context

Although a president has the legal power to absolve any individual of a crime, no president has ever attempted using the power on themselves. The constitutionality of such a move is questionable and would likely be determined by the Supreme Court.

Yet Trump is reportedly considering doing so in advance of any official conclusions from the investigation by special counsel Robert Mueller into the 2016 Trump campaign’s possible collusion with Russia.

Trump could also pardon his closest advisors, associates, and family members who are the subject of collusion investigations, including son Donald Trump Jr., son-in-law Jared Kushner, former National Security Advisor Mike Flynn, Attorney General Jeff Sessions, and political adviser Roger Stone.

Trump has not yet issued any official pardons so far during his presidency, six months in. Both Barack Obama and George W. Bush did not issue their first pardons until almost two years into their presidencies.

The constitutional amendment proposal

H.J. Res. 115, introduced by Rep. Al Green (D-TX9), would prevent Trump — or any president — from pardoning themselves. It would add a one-sentence amendment to the Constitution: “The President shall have no power to grant to himself a reprieve or pardon for an offense against the United States.”

“Presidential self-pardons would place the president above the law and beyond justice,” Rep. Green said in a statement. “It would make the president his own final judge, jury, and prosecutor. The United States of America would become a country of laws for all but the president.”

This would be especially difficult to pass because of the high bar required for constitutional amendments. In addition to two-thirds of both the Senate and House, it would need ratification from three-quarters of the state legislatures (or 38 of the 50 states). Given modern record high levels of political polarization, some people doubt whether a constitutional amendment could ever pass again.

The legislation has two House cosponsors, both Democrats. It has not yet received a vote in the House Judiciary Committee.

Presidential Pardon Transparency Act

Although by tradition presidents generally publicly announce their pardons in the name of transparency, this is not technically a legal requirement. Concerned about the possibility that Trump could issue secret pardons, Rep. Raja Krishnamoorthi (D-IL8) has introduced the Presidential Pardon Transparency Act, labelled H.R. 3489 in the House.

“There is currently no requirement that the President disclose pardons, even as he has reportedly weighed using them to sabotage Special Counsel Mueller’s investigation,” Rep. Krishnamoorthi, who was first elected in November, said in a statement. “The President has the power to pardon but the American people have the right to know how and when he has. The Presidential Pardon Transparency Act will establish this principle in law.”

The legislation has 24 House cosponsors, all Democrats. It has not yet received a vote in the House Judiciary Committee.

What opponents say

Trump has noted — correctly — that “After 7 months of investigations & committee hearings about my ‘collusion with the Russians,’ nobody has been able to show any proof.” Although the July revelation that Donald Trump Jr. replied “I love it” on a 2016 email when setting up a meeting with a Kremlin-linked Russian lawyer providing dirt on campaign opponent Hillary Clinton was considered a “smoking gun” by some people, legal experts differ.

Trump has also called the investigation “the single greatest witch hunt in American history,” spearheaded by Democrats as an excuse to point fingers avoid blame for their November presidential loss. And Trump has claimed his power to pardon anyone, at anytime, for any reason — potentially including himself — is “absolute.”

Last updated Aug 3, 2017. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jul 27, 2017.


Constitutional Amendment

This joint resolution proposes a constitutional amendment denying the President the power to grant himself a reprieve or pardon for an offense against the United States.