What checks exist against overuse of presidential pardons in the USA?

Question

In some countries, the head of state can pardon anyone for alleged crimes. For example, in Nazi Germany, Adolf Hitler pardoned murderers of communists and Soviet prisoners of war, in those cases in which those crimes were actually prosecuted and resulting in a conviction.

In the U.S.A., the President can also pardon anyone for (alleged) federal crimes. What checks and balances exist to prevent a U.S. President from pardoning anyone convicted for a federal crime when he or she thinks that shouldn't be a crime in the first place (apart from losing re-election if such pardons are impopular)? Reportedly, President Trump has said that officials who take private land in order to build a border wall will be pardoned (a White House official has reportedly said this was a joke).

Answer 1

Given that "an impeachable offense is whatever half of the House of Representatives considers it to be", impeachment could be a possible remedy if a President's actions were flagrantly immoral and/or sufficiently unpopular. The Constitution says that a president can be impeached and removed if they commit "high crimes or misdemeanors", but this term is not defined elsewhere in the constitution, and was understood by (at least some of) the Founders to be a catch-all for any betrayal of the public trust.

Contemporaneous comments on the scope of impeachment are persuasive as to the intention of the framers. In Federalist No. 65, Alexander Hamilton described the subject of impeachment as

those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

In fact, the Founders explicitly considered impeachment to be a remedy for abuse of the pardon power. The possibility of abuse of the pardon power came up during the debates on the Constitution, with George Mason arguing that the President should not have a pardon power lest he pardon those with whom he had conspired to commit a crime. James Madison pointed out that impeachment would be a valid remedy in such cases. [Thanks to @BradC for providing this link in the comments.]

Answer 2

Theoretically, the congress could try to impeach.

BUT, in reality, presidents often wait until his final days/hours to grant the most controversial pardons.

And once a pardon is granted, there is no recall of the pardon.

Therefore, there is really no checks to pardon power, making it the most KING like power the presidency holds.

Answer 3

As already said the primary check against abuse of a pardon is the threat of impeachment.

However, I'd argue there is another, unofficial, check against presidential abuse of pardon that is worth discussing, the states' judicial systems.

I already go into detail about this in another question, so I won't repeat myself too much. The short version is that most federal crimes are also state crimes, and thus in most cases anyone pardoned of a federal crime usually could still be convicted of a state crime for the same action. The supreme court has ruled that this is not a violation of the fifth amendment's protection against double jeopardy since the state and federal governments are separate entities.

There has been a long running common agreement between the state and federal governments to respect each others decisions in regard to a crime. If someone is put on trial for a federal crime the state will generally respect that ruling, rather the person is found guilty or innocent, without having a second state level trial; and likewise the federal court's general respect the state's trials. This is NOT constitutionally required, but it's still a very strongly held tradition in deference of avoiding double jeopardy.

Generally this has also been true for federal pardons, state's respect the pardon and do not prosecute the pardoned individual of the same crime on the state level. However, there is no legal requirement for a state to do this. If a state feels that a pardon has been abused in an unjust manner they have the right to convict the pardoned individual on the state level, assuming they have an appropriate state law that was violated. This would require breaking a very strongly held tradition, and as such would likely only be done in the event of very blatant abuse, but it still stands as a second line of defense against such an abuse by giving a means that a pardoned individual may still face justice for his or her crimes if the pardon is agreed to have been abused.

Answer 4

Another option to add to the great list already present: delay charging someone for a federal crime from which you believe the President may pardon them.

This is obviously the most limited of the available options for a number of reasons, but if the crime occurred in the temporal vicinity of an election, simply wait until a new, potentially more amenable President takes office and then file charges.

Limitations include, but are not limited to:

1. Statutes of limitation. If the statute of limitations for the crime is 2 years and the President will remain in office for 3 years...no luck for you, barring extremely long court proceedings.
2. Time sensitive evidence. Discovery is the process of forcing court participants to furnish information relevant to the crime. If you fail to file charges, the criminal can attrition evidence of their crime -- be it legally or otherwise (many documents have legal retention periods. After they've expired, you can legally delete them unless they're under subpoena).
3. The criminal has more time to flee to a jurisdiction more favorable to them (i.e., a country that won't extradite)
4. This is neither here nor there, but as a federal prosecutor, the President is your boss and is very likely to have personally appointed you. I.E., you're very likely to agree with any pardon decisions thus rendered. If your term outlasted the term of the President that appointed you, though, and the Senate habitually declines to confirm your replacement, you may find yourself strategically positioned to delay indictments until the next President is elected!