Rep. Nadler Proposes to Amend Pardon Power

>> Sunday, December 21, 2008

In an interesting and inevitable move someone has finally moved towards amending and restricting the presidents pardon power. I bring this up as inevitable because the history of the last several presidents regarding pardon power has ignited controversy. From the Vietnam Nixon, Iran-Contra People, Marc Rich, to Scooter Libbey Presidents have been pardoning people that many claim are wholly undeserving for their own personal ends. Rep. Jerrold Nadler (D-NY) is planning to introduce a constitutional amendment that would put a restriction on the ability of a President to pardon the members of his administration and pardon in the waning months of his or her presidency.

Amending the presidential pardon power is actually something i have been hoping to see. The pardoning power is supposed to be used as a tool of corrective equity that rights an injustice. Instead it has been used for personal and political gain of the chief executive. It cannot be impossible to design a scheme that keeps the corrective equity intact but restricts the excesses of the power.

Nadler, who two weeks ago introduced a resolution demanding President Bush not issue 'pre-emptive' pardons of officials in his administration, said his amendment would bar presidents from pardoning members of their own administration for official acts. The president would retain the power to pardon the secretary of state for, say, beating his wife, Nadler said, but not for actions taken in an official capacity.

Brian Kalt of Concurring Opinions, a highly respected legal blog, has a pretty sharp take on the issue. He focuses first on the original intent of the framers regarding the pardon power and what i consider to be a misplaced faith in the political process.

When the Framers debated the pardon power, Edmund Randolph (later the nation's first attorney general) proposed that the president should be forbidden from pardoning people for treason. As Madison's notes record Randolph's argument: "The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments."

But Randolph's motion was soundly defeated, and so presidents have the power to pardon treasonous conspirators that they themselves have directed. For the Framers, this was not too great a trust, for the same reason that the president is the best repository of the pardon power: the president is politically accountable to the whole nation, in a way that no other official in the government is, and he is not above the law.

These themes are evident in the debate. The response to Edmund Randolph came from James Wilson (later the first justice sworn onto the U.S. Supreme Court), who said: "Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted." The pardon power is an important safety valve in the legal process, and its importance is heightened in serious cases like treason. It is not that Wilson thought no president would ever issue a bad pardon. It was that he thought that no president would be able to count on doing so with impunity.

The main take away from this is that the founders expected that the consequences of abuse would exist. The did not count on the political process evolving to such a state where everyone else in power was willing to allow abuses of power because it covers for their own complicity. What the founders were counting on is that in cases where presidents abused the power they would be subject to impeachment or future criminal charges. I reject the idea that crimes committed while in the official capacity as President are immune from prosecution. If you use the government as your criminal tool you are not free from prosecution because of some notion of "criminalizing politics".

It is a pipe dream to expect Dick Cheney, George W. Bush or any one else in his administration is ever going to face criminal charges for their actions while in office. Bush really does not need to use a pardon because the power structure will never allow him to be indicted. Its too damaging to the status quo. However that is not an excuse to stop fighting against future abuses. We should not allow future presidents to simply pardon their potential conspirators. Its just that simple.

Nadler's proposal would prevent last minute pardons and the pardon of those in the presidents admin for acts done in their official capacity. The mechanics of working out something like this are very difficult. I have difficulty in imposing a time frame on when a president may pardon some one. it may be necessary for them to be pardoned on the last day of an administration and this law would create an injustice. Not to mention that instead of the last months they just pardon them earlier. Not a particularly compelling barrier for someone like Bush who could care less about what the public thinks. Henry of crooked timber disagrees,

But I can’t see any very good argument against the second, admittedly more tentative element of Nadler’s proposal – that the President’s power to pardon be restricted during his/her final months in office. As we saw most notoriously with Clinton, presidents may possibly have a strong incentive to pardon people in the closing months of their administration, because they won’t have to pay a significant political price for it. This creates real problems of democratic accountability, in an area where the arguments for political discretion seem relatively weak (e.g. if the claim is that the power would be used primarily to overturn bogus political prosecutions, then there shouldn’t be much of a legitimacy hit for pardoning people earlier in the President’s term). So is there any good rationale why the President shouldn’t be constitutionally forbidden from issuing pardons say, during the interregnum after November 4 and before the new President takes office?

I just dont see the consequences of a shady pardon being so great as to prevent the pardon. There is little democratic accountability in the day to day job of the presidency and their has been less and less during the Bush years. Most things are too boring and wonky to draw the attention of the media outside of Rachel or Keith. We saw the lack of a backlash against the scooter libby pardon. Who expects the next set of similar pardons to generate more outrage among the general populace? Kalt argues against both aspects,

At some level, I am sympathetic to the second part of Rep. Nadler's proposal, because I think that the president, while still accountable in his last few weeks, is so much less accountable that the potential for mischief exceeds the benefits on unrestricted power. Perhaps allowing two-thirds of the Senate to override such lame-duck pardons would make sense. But in the grand scheme of things, this is a trifle. We don't amend the Constitution over such things, and it is largely pointless to try.

I am less sympathetic to Nadler's other proposal, because it is problematic to limit the president's ability to pardon his own subordinates. Again, it is not that such pardons are necessarily good (or ever good, for that matter). It is that our Constitution generally does not try to get specific. It relies on structure, on the political process, and on the rule of law. For instance, instead of specifying the qualifications for offices, the Constitution relies on the Senate to use its confirmation power wisely, and for presidents to make their nominations with that in mind. By the same token, the Constitution does not restrict the pardon power much, because it relies on the political process, the impeachment process, and the criminal law to prevent ill-advised or corrupt pardons.

Relying on anything less than an explicit and expressed rule will lead to abuse. Even then its little more than a 50/50 shot that any uproar occurs. Kalt argues that we dont amend the constitution for minutiae but i think thats an unpersuasive argument given just how broad the power is. I think we would be totally justified in going in and doing some editing when we find that some things just need to be revised because they have been abused and become a detriment to the country. Allowing for a review of lame duck pardons seems like a good idea. So while i agree that the blanket banning of pardons during the end months would prove problematic the inclusion of a potential review process is required in the face of the abuse and failure of the designed system


Brian Kalt December 21, 2008 at 8:27 PM  

Just to be clear, I wasn't arguing that we shouldn't amend the Constitution over minutiae. I have a long list of minutiae I'd love to see cleaned up, including late-term pardons. I was saying that generally speaking, we don't pass such amendments, so while worthy, that part of Nadler's proposal is (to use your phrase from elsewhere in the post) a pipe dream.

In other words, I don't think we disagree about the merits of making late-term pardons reviewable.

The Gaucho Politico December 22, 2008 at 2:44 AM  

i must agree that we simply do not have a record of amending the constitution over minutiae, or much at all. If we were to go back and do some cleaning up add preventing self pardons to the amendment.

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