Q: Now that Bill Cosby has been found guilty, it seems possible President Trump could issue a pardon, letting Cosby off scot-free. Congress has the authority to override a presidential veto. Couldn’t we also give Congress the ability to override a presidential pardon? —Curious in Indy
Cecil responds:
A: I see where you’re going there, Indy, but the scenario you’ve cooked up won’t work: Cosby was convicted under the state law of Pennsylvania, and presidential pardon power extends only to federal crimes. This may come as some surprise to the current officeholder, who last year tweeted that “all agree the U.S. President has the complete power to pardon.” Who wants to tell him?
But OK, let’s play this one out. Say Cosby had been convicted on federal charges, and say Trump pardoned him. For Congress to block such an action would require not just a law but an amendment to the Constitution. The power of executive clemency derives from Article II, Section Two, which permits the president “to grant Reprieves and Pardons for Offenses against the United States”; an 1866 Supreme Court decision affirmed that it “cannot be fettered by any legislative restrictions.”
If you’re looking to challenge a presidential pardon, then, don’t call your congressperson—call your lawyer, because the real action is in court.
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