Rep. Nadler Proposes to Amend Pardon Power

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

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Speaking about Pardons...

Erick Holder the man to be nominated by Barack Obama for the position of attorney general is under fire for his involvement in the pardoning of Marc Rich at the end of the Clinton administration. His role appears to have been more than incidental in the affair. However i think we need to take a step back and think about the nature of presidential pardons in general. The Presidential pardon power is virtually unlimited, except in cases where the crime stems from impeachment. It is one of the most sweeping powers granted to the executive. There is even a question of whether the president may legally pardon himself, i tend to think that he cant. The entire debate around the rich pardon is a circus not made less by comments like these,

“Marc Rich was a fugitive for nearly two decades, wanted by the federal government for fraud and tax evasion,” Representative Lamar Smith of Texas, the ranking Republican on the House Judiciary Committee, said Monday after the nomination was announced. Referring to Mr. Holder’s actions, Mr. Smith added, “If a Republican official had engaged in this kind of activity, he would never receive Senate confirmation.”

Really? Smith seems to be making a point that republicans would never be allowed to discuss the pardon of criminals. I think he might want to think about the whole scooter libby thing. Most of the major republican presidential candidates backed pardoning libby, a man who obstructed justice when he tried to prevent prosecutors from learning who leaked the name of an undercover cia agent.

Scooter Libby did things far more offensive to me than fleeing to switzerland and failing to pay taxes. He was involved in covering up the lies and deceit that were used to get us into Iraq. Imagine the kind of fuss the republicans would raise if a democratic president pardoned the person who helped him lie us into war. Complaining about Marc Rich without doing so in light of the myriad other pardons like Scooter Libby that are arguably worse is disingenuous.

Pardons are supposed to be a matter of corrective equity. They exist to balance the scales of justice when the application of the law to a given fact set results in an unjust outcome. To have them used as a means to clean up after the misdeeds of the pardon giver is in opposition to the purpose for which they exist. Until we amend the constitution to deal with the sweeping and, i believe, overly broad pardon powers we are going to continue on this path of pardons for those who dont deserve it but are in positions where the pardon is advantageous to the pardoner.

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How Likely is it that Bush Pardons Himself?

As the Bush Presidency mercifully draws closer to its end, the question of Pardons has started to appear. Given the criminal nature of the administration, many feel like the mass pardons are coming. I find it hard to disagree with this sentiment. Like every other aspect of power under President Bush’s purview, this too will be abused. The question becomes in what way? The power of the pardon is a sweeping one derived from the powers of the English monarch and so it has many possibilities. It is hard to imagine that Bush, who already believes himself a King, will forgo this temptation to insulate him and his henchmen from any criminal repercussions.

When I first read about the idea of Bush pardoning himself I thought, “How is that even legal?” As it turns out the question has never been resolved, as the situation has never occurred. Like many things under Bush, the President protecting himself against future prosecution would be a first. The only apparent limits on the power of the pardon are, cases of impeachment and money paid into the Treasury or paid an informer. The consent of the pardoned is not required for the pardon to be issued.

Originally, the pardon did require an acceptance by the pardoned. In United States v. Wilson, 32 U.S. (7 Pet.) 150, 160-61 (1833) Chief Justice Marshall wrote, “It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court.... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” His acceptance doctrine has not stood the test of time.

In Biddle v. Perovich, 274 U.S. 480, 486 (1927), the court allowed the commutation of a death sentence against the wishes of a prisoner. The court reasoned that, “A pardon in our days, is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” This seems to very neatly take the power to refuse out of the hands of the pardoned.

The pardon is an interesting power because it is so broad. It is hard to imagine that the people who fought so desperately against the over broad powers of the king would be willing to grant powers of similar scope to the new American executive. Yet, that is exactly what happened. Now this power has fallen into the hands of President George W. Bush who will no doubt use it wisely. Note that his definition of wise may very from yours.

As I stated earlier the question of whether a President may pardon himself has yet to be resolved. The question briefly arose when President Clinton was leaving office with the specter of impeachment looming over his head. The Constitution simply says that the president "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." In Clinton’s case, it appeared that he could have immunized himself from criminal prosecution from perjury but not from the impeachment itself. In a way, this makes limited sense. I doubt that the framers wanted to allow the president to circumvent impeachment all together simply by pardoning himself. Why they would allow him to avoid criminal prosecution is up in the air.

At the very least Bush could try to pardon himself. His legal henchmen are probably chomping at the bit to prove that the executive can really do what ever he wants. Although Bush pardoning himself might poke a minor theoretical whole in the argument that if the president does it, it is by definition legal. Why do you need immunity when you did nothing wrong?

In the event that he does try, things could get very crazy. If Bush is brought up on federal charges after her pardoned himself it would be up to the judge in that case to decide whether the pardon is valid. The judge might rule that the judiciary is not permitted to interpret the meaning of the Constitution in this matter. The rationale behind this is that the Supreme Court has ruled that certain constitutional interpretations are the province of "political" branches, not the judicial branch source. I find it unlikely that the court would pass on the chance to decide this constitutional matter. The outcome though is in doubt depending on the composition of the court after the next president is sworn into office. Can you imagine the court with his own appointments sending him to federal prison?

The fact that the charges against Bush and his underlings have not been filed is of no consequence.

While pre-emptive pardons remain very rare, there are a few notable exceptions. Perhaps the most famous presidential pardon of all time occurred before any charges were filed. Gerald Ford's pardon of Richard Nixon absolved the former president of "all offenses against the United States which he ... has committed or may have committed or taken part in" between the date of his inauguration in 1969 and his resignation in August 1974. In other cases, presidents have pardoned individuals after criminal proceedings have begun but before a judgment has been handed down. In late 1992, less than a month before leaving office, President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who had been indicted earlier that year on perjury charges surrounding the Iran-Contra affair. (A lawyer for Roger Clemens' former trainer Brian McNamee claimed the pitcher might receive a similar pardon from Bush if he were ever indicted.) In addition, broad presidential amnesties—like the one President Carter issued to those who had avoided the draft during the Vietnam War—are essentially pre-emptive pardons issued to a large group of individuals. source

The President may pardon anyone after the crime is committed. The exact offense is not needed as broad language is typically used such as the language Ford used for Nixon, "all offenses against the United States which he ... has committed or may have committed or taken part in”. This allows Bush to stay vague about the crimes committed so we would not even get the relief of knowing exactly what they are. It also makes sure he does not forget any.

Do not think that Bush will be unable to exempt everyone in his administration if he so chose. There are also several examples of broad amnesty grants. These examples include Washington in 1795, Adams in 1800, Madison in 1815, Lincoln in 1863, Johnson in 1865, 1867, and 1868, T. Roosevelt in 1902. The Supreme Court validated this practice in United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872) and United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870)source.

It was brought up in another diary that those who are pardoned can be compelled to testify in court as the 5th amendment is no longer applicable. This is an interesting argument as it is true that there would be no threat of self-incrimination as the pardon removed all potential threats stemming from the crime. If the mass pardons are done correctly though there should be no one to put on trial. Ignoring that, it would seem that the pardon does force the person receiving it to testify. The case law concerning this is Boyd v. United States 142 U.S. 450 (1892). In Boyd the Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect.

The inability to assert the 5th amendment was later reinforced in Brown v. Walker, 161 U.S. 591 (1896). In Brown, the Court said: “It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed.”
Therefore, if Bush did pardon himself and every one around him and his self-pardon failed he would be in a great deal of trouble, especially as a person may not refuse a pardon. In that nightmare/glorious (depends on your point of view) scenario every one he pardoned could be compelled to testify against him and that is not something he would want.

There is not a great deal that congress can do to prevent or alter the effects of the pardon. Congress tried on July 12, 1870, to make proof of loyalty necessary to recover property abandoned and sold by the Government during the Civil War. This was struck down in United States v. Klein, supra. Chief Justice Chase for the majority: “[T]he legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end.” This means congress will not be passing any laws to punish Bush if his self-pardon holds up.

It looks like it comes down to some simple risk-reward calculations for Bush. If he feels like there is no chance he ever faces federal charges he might as well save his pardons for people donating to his library. If he does feel like there might be charges in his future he might just pardon himself. The last possibility is that he just tries to immunize any one connected to him for the last eight years including himself in the belief that nobody would succeed in discrediting his self pardon. It is hard to imagine him passing it up but i think he does. After all no one else seems to be facing any federal charges over anything so why would Bush worry about any of them in his future?

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