Submit Presidential Pardons to a Judicial Review Panel

Article II, Section 2 of the Constitution gives the President “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The Supreme Court read that grant in Ex parte Garland (1866) as plenary and “not subject to legislative control.” In the first 90 days of his second term, Donald Trump issued blanket clemency to roughly 1,600 January 6 defendants. That cohort included more than 600 convicted of assaulting law enforcement and 14 members of the Oath Keepers and Proud Boys convicted of seditious conspiracy. Subsequent grants are listed in the Office of the Pardon Attorney’s published clemency warrants for the second term. The California Governor’s office calculates that Trump pardons across both terms have erased about $2 billion in court-ordered restitution, fines, and forfeiture obligations, of which roughly $1.3 billion was owed to identified crime victims.

Source and scope of the pardon power

Article II, Section 2, Clause 1 grants the President sole authority to issue pardons, commutations, reprieves, amnesties, and remissions of fines for federal offenses. The text excludes state offenses and cases of impeachment. The Supreme Court has held since Ex parte Garland, 71 U.S. 333 (1866), that Congress may not narrow the power by statute and that pardons may issue before charges, during prosecution, or after conviction.

The Office of the Pardon Attorney, established within the Department of Justice in 1893, conducts background investigations, applies published eligibility standards, and forwards a recommendation to the President through the Deputy Attorney General. The Office has no statutory veto. In the first Trump administration (2017–2021), 25 of 237 clemency grants moved through the Office of the Pardon Attorney; the remaining 212 grants were issued to recipients whose petitions had not been filed with the Office or did not meet the published criteria, and the Office ended the term with a backlog of approximately 14,000 applications. The blanket January 6 proclamation of January 20, 2025 was issued without any Office of the Pardon Attorney review.

The amendment and the review statute

The proposal has two components. The constitutional amendment alters Article II, Section 2 to make pardons effective only on approval of a Pardon Review Panel. The companion statute, authorized by the amendment’s enforcement clause, applies the new standard to pardons issued since January 20, 2001.

The amendment provides:

• A Pardon Review Panel of five federal judges, drawn from the active service of the U.S. Courts of Appeals, with three appointed by the Speaker of the House and two by the President pro tempore of the Senate. Members serve staggered four-year terms and may not be reappointed consecutively.
• Each pardon, commutation, reprieve, amnesty, and remission of fines or forfeitures takes effect only on a finding by a majority of the Panel that the grant serves a judicial purpose, a public-interest purpose, or both, as those terms are defined in implementing legislation.
• Self-pardons, pardons to relatives within the third degree of consanguinity or affinity, pardons to current or former members of the administration, pardons to paid campaign employees, pardons coordinated with or directed by the President, and pardons issued for a corrupt purpose are void ab initio. These bars are drawn from H.J.Res.13 (119th Congress).
• Pardons in cases of impeachment remain prohibited under the existing text.
• The amendment grants Congress enforcement authority by appropriate legislation, including authority to apply the Panel’s review standard to pardons issued before the amendment’s ratification.

The companion review statute provides:

• Every pardon, commutation, reprieve, amnesty, or remission of fines or forfeitures issued on or after January 20, 2001 is referred to the Pardon Review Panel within 180 days of the statute’s enactment.
• Pardons that fail the judicial-or-public-interest standard, or that fall within the categorical bars listed above, are vacated. Vacatur reinstates the underlying conviction, restitution order, fine, and forfeiture obligation.
• Recipients of vacated pardons may seek individualized clemency through the Office of the Pardon Attorney under the new standard.
• The statute creates a tolling rule for the federal statute of limitations during the pendency of any vacated pardon, so that prosecutions barred only by the pardon may proceed.
• Restitution amounts vacated under the statute are restored as obligations to identified victims, with collection assigned to the Department of Justice.

Precedent

Two state constitutions already condition the executive’s clemency power on a board. Pennsylvania’s Constitution, at Article IV, Section 9, requires every gubernatorial pardon to rest on a written recommendation of the Board of Pardons; the Board comprises the Lieutenant Governor as chair, the Attorney General, and three members appointed by the Governor with Senate consent — a crime victim, a corrections expert, and a doctor of medicine, psychiatrist, or psychologist. Cases involving life sentences or capital punishment require a unanimous Board recommendation. Connecticut goes further: under Conn. Gen. Stat. §54-124a, the Governor holds no pardon power, and all clemency decisions rest with the Board of Pardons and Paroles, whose members are appointed by the Governor with the advice and consent of both houses of the General Assembly. Both boards have operated continuously since their adoption.

At the federal level, multiple proposed amendments have advanced the same principle. H.J.Res.13 in the 119th Congress, introduced by Rep. Cohen with Reps. Johnson of Georgia and Levin as cosponsors on January 9, 2025, lists six categorical bars on the pardon power and provides that any pardon issued for a corrupt purpose is invalid. H.J.Res.108 of the same Congress provides that “the President may not grant a pardon to himself or herself.” The Brennan Center for Justice has endorsed the categorical-bar approach in its published clemency-reform proposals. The Bill Clinton pardon of Marc Rich on January 20, 2001 was issued without an Office of the Pardon Attorney recommendation. Denise Rich, the recipient’s ex-wife, donated to the Clinton presidential library and to Hillary Clinton’s Senate campaign during the same period. The House Committee on Government Reform held hearings on the pardon in February and March 2001.

First 100 days

Day one. Companion joint resolutions are introduced in the House and the Senate. The President sends a transmittal letter to both chambers requesting expeditious consideration. The companion review statute is introduced in both chambers as a separate bill, contingent on ratification.

Day thirty. The House and Senate Judiciary Committees report the joint resolutions out of committee with hearings on (1) the historical record of pardons granted outside the Office of the Pardon Attorney process since 2001 and (2) the operational record of the Pennsylvania and Connecticut clemency boards.

Day ninety. Both chambers pass the joint resolution by the required two-thirds majorities and transmit the amendment to the states for ratification. The companion review statute passes both chambers and is signed, with effective dates contingent on ratification of the amendment.

Operative effect on future and post-2001 pardons

On ratification of the amendment and enactment of the companion statute, federal pardons take effect only on approval of the Pardon Review Panel. Pardons that fall within the categorical bars (self, family, administration, campaign staff, offenses tied to a presidential interest, offenses coordinated with the President) are void on issuance, and Panel approval cannot validate them. Pardons issued on or after January 20, 2001 are referred to the Panel under the same standard. Pardons that fail the standard or fall within the categorical bars are vacated, and the underlying convictions, restitution orders, fines, and forfeitures are restored. Pardons the Panel finds to serve a judicial or public-interest purpose remain in effect.