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Should the Pardon Power Be Amended?

Rep. Jerrold Nadler is proposing to amend the Constitution to restrict the President's pardon power. Rep. Nadler is apparently concerned that President Bush will pardon members of his own administration involved in the development of counterterrorism and detainment policies who may have broken the law. Brian Kalt observes:

the most interesting thing about Nadler's proposal is how diametrically opposed it is to the Framers' conception of the pardon power. This is not a criticism of Nadler's proposal as such—by definition, constitutional amendments are inconsistent with the constitutional provisions that they are trying to change. But it is striking, and illuminating.

Kalt's whole post is worth reading. Among other things, it reminds us that the question of whether a President should be able to pardon members of his own administration is not new. After debating the question, the Framers concluded that this was not too great a power to give the President, despite the potential for abuse. Recent Presidents have certainly use the pardon power in inappropriate ways, but I don't think this justifies amending the Constitution.

Paul Milligan (mail):
The Left, especially the rabid far-left like Nadler, ahs NEVER cared about the Separation of Powers. Just look at how they've handled judicial appointments, for instance ( they are supposed to 'advise and consent', not 'co-select' ), or the BS 'pro forma sessions' Congress has been running ever since John Bolton was appointed UN Ambassador, to pre-empt the President of his power to make recess appointments.

My bet - it will be twice as bad next Congress. Reid and Pelosi will be totally out of control, egged on behind the scenes by Brobama ( who will distance himself a little bit publicly to maintain plausible deniability ).
12.6.2008 11:22am
EricH (mail):
It is interesting that apparently (or even explicitly seen) the Framers were more concerned with elected officials raising salaries of other positions and then going into those posts (re Senator Clinton and the emolument clause) than they were with the potential abuse of the pardon power.

The latter, today, seems to many of us (regardless of the President) to be far more potentially dangerous than increasing salaries. One would think that they would have limited that power to not apply to anyone who had served in their Administration.

I wonder if perhaps the fact that there were no limits on terms for the President at that time played a role? That is, public opinion/elections would restrain any abuse?
12.6.2008 11:24am
MarkField (mail):
I'd favor an amendment which put a hold on pardons between September 30 of any election year and the inauguration of the new or returning president. That would keep the current power intact, but assure that presidents couldn't duck the political price for granting them a la Clinton.

Another reasonable limit might be to require that pardons only be issued after conviction.
12.6.2008 11:29am
Charlie (Colorado) (mail):
I've got an even better idea: let's just note that Nadler is an ass.
12.6.2008 11:45am
Steve M. (mail):
Actually, I'm not certain Representative Nadler's proposal really is inconsistent with the framers' intent. The Constitution limits the President's pardon power in cases of impeachment. That limitation was meant as an anti-corruption measure -- the President can't ask his agents to break the law, and then pardon them when they're removed from office for it.

But I think it's reasonably clear that the framers envisioned impeachment and trial in the Senate as a significantly more robust remedy than it's turned out to be. That is, they thought that impeachment, conviction, and subsequent removal from office would the the mine-run response to executive malfeasance. But the Jefferson administration botched its impeachment efforts (or, if you disagree, there just weren't enough votes -- a fascinating story, regardless), and ever since impeachment has been a paper tiger. Needless to say, the Presidents have, with the exception of Nixon, been extremely effective in defending against actual or potential impeachment trials.

Today, indictment on criminal charges is de rigueur as a response to executive malfeasance. I think there's a very good argument that indictment has, as a practical matter, replaced impeachment. It's much less unwieldy, and, since the impeachment trial procedure is so clunky, it's much easier for the President's enemies to pressure the Justice Department into bringing charges than it is to charge the official through a bill of impeachment. The consequence of all this is that the President has a power the framers might not have intended -- the power to pardon his agents when they commit crimes in his service.

I know I'm leaving out part of the story -- the punishment imposed after conviction on impeachment charges is limited to removal from office and disqualification from later holding federal office, but not so with indictment -- but there's something here. And I think you can tell a similar, circumvention-themed story about the procedures for trial on treason charges laid out in Article III and indictment for, e.g., providing material assistance to a terrorist organization.
12.6.2008 11:51am
PDXLawyer (mail):
Seems to me that use of the pardon power during a transition to safeguard the outgoing administration is a sort of safety valve. At least it removes a major incentive to try to hang on to power despite the voters. If Robert Mugabe could effectively pardon himself and his partisans, things might go easier in Zimbawbwe, for example.

I'm not saying Bush is a tyrant. Just making a structural argument - if a President crosses the line, we want to make it easy, not hard, for him to cross back if the election goes against him.
12.6.2008 11:59am
Lily (mail):
"It is interesting that apparently (or even explicitly seen) the Framers were more concerned with elected officials raising salaries of other positions and then going into those posts (re Senator Clinton and the emolument clause) than they were with the potential abuse of the pardon power."

I believe there is more opportunity for abuse of office with the power to raise their salaries and to move on to lucrative and influential posts than there is with the pardon power.
12.6.2008 12:04pm
EricH (mail):
I believe there is more opportunity for abuse of office with the power to raise their salaries and to move on to lucrative and influential posts than there is with the pardon power

Really?

Perhaps because of that limit we (or I) don't consider it a problem. It seems to me that if Congress abuses the power (that is, the Constitution didn't have the clause) that the electorate could remove them from office. And a new Congress could rescind the raises.

But a President leaving office with the pardon power can do (potentially) greater mischief. Once handed down, there's no possibility of unringing the pardon bell.
12.6.2008 12:29pm
Mark in Texas (mail):
The Founders could not predict the future but they did have knowledge of the relatively recent past such as the shenanigans of the British Parliament in the 17th century.

That is why bills of attainder and ex post facto laws are specifically prohibited in the Constitution.

Nadler is trying to get around those limits on his ability to take vengeance on his political opponents. The Founders had good reasons for not wanting to allow that.
12.6.2008 12:40pm
Cornellian (mail):
If there were no pardon power at all, maybe Washington politicians would get off their collective ass and do something about the vast prosecutorial empire they've built on a foundation of vague, all encompassing prohibitions combined with draconian penalties.
12.6.2008 12:43pm
Libertarian1 (mail):
As a Libertarian, it is often lonely living on the Upper West Side. Despite the fact I have never voted for him, Nadler keeps winning.

In a recently contested City race the Democrat won 89%-11%. I actually met both candidates and the Republican was far more knowledgeable. So Nadler can say or do anything with no fear of consequences. He has thrown his hat into the ring to be Hillary's replacement. Maybe this is designed to capture media attention in lieu of a campaign ad.
12.6.2008 12:45pm
donaldk2 (mail):
Of course it is mere grandstanding, and not to be taken seriously. Amending is a process that takes several years.
12.6.2008 12:59pm
Bruce_M (mail) (www):
I've been saying that President Obama should take it upon himself to pardon Bush and maybe Cheney. As much as I would love to see them prosecuted, we know it won't happen. It's not politically possible, and even if it were, the democrats wouldn't have the balls to do it. So be proactive and take the high road - pardon Bush (and maybe Cheney). End our long, national nightmare. I think it would be a brilliant move on Obama's part. What's Bush gonna do, explicitly refuse the pardon?

As for the concern that Bush will pardon certain people in his administration, that's not going to happen. Bush Knows (with a capital "K", that is, on pure faith and without regard to reason or facts) that everything people in his administration have done to fight the evildoer terrorists has been proper, so unless criminal charges are actually pending against such persons, Bush would not pardon them because he'd see it as an implicit admission that his critics are correct and that his policy was wrong. There's no room for such though processes in the small mind of a man of pure faith.
12.6.2008 1:21pm
MarkField (mail):

The Founders could not predict the future but they did have knowledge of the relatively recent past such as the shenanigans of the British Parliament in the 17th century.


I think the Founders were much more concerned about the abuses of executive power by the Stuart Kings than about Parliament's defensive responses to those abuses.


It seems to me that if Congress abuses the power (that is, the Constitution didn't have the clause) that the electorate could remove them from office. And a new Congress could rescind the raises.


In fact, the political uproar over Congressional pay raises has led to a number of reversals due to public outrage, starting as early as 1815 or so (off memory). We even owe one Constitutional amendment to that reaction. In contrast, abuses of the pardon power have gone uncorrected.
12.6.2008 1:28pm
Stormy Dragon (mail) (www):
It seems to me that the Congress already has the authority to prevent pardoning, in the for of the impeachment process. This seem likes an attempt to restrict the executive branch because the officials in the legislative branch are too spineless to do their jobs.
12.6.2008 1:40pm
VFBVFB (mail):
There should be an amendment that would allow Congress to override a presidential pardon by a two-thirds vote. The power to pardon is an example of where a branch of government can take a unilateral step that the others cannot check. A Congressional override would have prevented some of the egregious pardons such as Marc Rich.
12.6.2008 1:55pm
Curt Fischer:
Perhaps in times past I could agree with Lily. Formerly, real-dollar salaries for US Presidents were much higher relative to population median incomes than they are today.

Today, though, the allure of the Presidency has nothing to do with salary. Barack Obama apparently raised more than $750 million to fund his campaign. I don't think the $400,000 salary he will draw will factor into any of his decision making. Likewise for all Senators and probably most Representatives too.

In fact, the low real salaries for today's politicians are just one more incentive for them to rely on fundraising from wealthy donors. Obviously it is not the only factor responsible for the disproportionate influence of the wealthy on our political discourse, but it is one.

I wonder what would happen if the President's salary and those of the Congress were all increased tenfold.
12.6.2008 1:56pm
Bama 1L:
It seems to me that the pardon power is kind of anti-separationist, since it lets the President at a stroke negate the actions of the legislature (who defined a crime) and judiciary (who judged the conviction). The President gets the last word, and if he's on the way out, even impeachment holds no threat, if indeed it ever did.

Also, didn't the President already have two bites at the apple? He could have vetoed the law, so no whining about drug penalties being too tough, etc. Furthermore, he could have ordered his officers not to prosecute, either in general or in the specific case.
12.6.2008 2:08pm
TruePath (mail) (www):
When I see political discussions like this I understand why democracies function as poorly as they do.

I mean what would a good way to decide if the presidents pardon power should be ammended be? Well one should presumably be balancing that various costs an benefits. For instance: the harm of trivializing a constitutional ammendment, that of greater risk-aversion in government and that of political breakdown as a result of politically charged trials balanced against the greater deterrent effect restricting the pardon power would have on government officials contemplating lawless actions. Also one might worry that restricting the pardon power would put more pressure on administrations to bias the legal guidance from the white house counsel to give them legal cover.

Now personally my sense is that this balance comes out on the negative. Largely for the same reasons it would be a huge mistake for Obama to prosecute Bush officials: impeachment, oversight and elections are good ways to provide governmental accountability; trying private citizens for their perceived misdeeds while in office is a recipe for complete disaster. Just think about some of the people your political opponents seem to feel have criminally misbehaved and tell me you don't think once this got started it would end with prosecutions for political disagreements.

Apart from trivializing the amendment process for something that isn't really an issue I think the largest effect of such an amendment would be to send the message that the prosecution of officials is on the table.

But one could perfectly well weigh these considerations differently than I and reach the opposite conclusion. However, I'm disturbed by the fact that people seem more motivated to make sure someone doesn't "get away with something" than they are in balancing the costs and benefits. So what if someone gets away with something. The question is whether we need greater deterrence or not and we must recognize that sometimes the best solution is to let someone get away with things.
12.6.2008 2:26pm
TruePath (mail) (www):
BTW: I didn't mean to imply that the commenters at Volokh were particularly guilty of thinking this way. My reaction was to the story and the apparent motivations of the people involved.
12.6.2008 2:28pm
gattsuru (mail) (www):
Bama1L, each portion of the federal government has the ability to force both other portions to not act in a given situation. The judicial branch has the ability to find someone not guilty for a given act, after which only the judicial branch has the ability to retry a case (due to the ban on retrying a decided case and the ban on ex post facto laws). The legislative branch has both the ability to remove laws. The executive branch can choose not to enforce laws or even presenting cases where the Federal Government would be prosecuting (or use executive orders to practically redefine laws).

It's only to act that additional sections must be consulted. Then all portions must agree for most laws to be applied.

There are a lot of abuses of the pardon power, but the ability to pardon an outgoing administration seems like the least of them. As a definitional thing, these people are either going to be unable to continue their crimes, or still in an appointed or elected position (or people are trying prosecution for those providing legal advice, which I don't think should pass first amendment scrutiny). That's not the case for many other pardoned individuals.

I wouldn't mind seeing Clinton and Reno sued for what they did, but that's precisely why we can't have that sort of deal going around.
12.6.2008 2:40pm
Justin (mail):
Steve M.'s thoughtful comments mirror my own.
12.6.2008 2:49pm
Elliot123 (mail):
I'd suggest the Founders expected people like Nadler to pop up from time to time. They are all the justification we need to keep the pardon power as it is. If Hobson's Choice demanded I choose between abuse of pardons and political prosecutions, I'd choose the pardons abuse.

In the same vein, it's especially enlightening to listen to the legal experts spend millions of words over several years wrangling with each other over how some 19-year-old should have acted when he had seconds to make a decision. They can't figure out in years what they expect him to figure out in seconds.
12.6.2008 3:04pm
D.R.M.:

It seems to me that the Congress already has the authority to prevent pardoning, in the for[m] of the impeachment process.

Exactly. Exactly to nine decimal places. The problem here is not the pardon power, but the choice of Congress not to use its powers to police the executive.

If a crime is not severe enough to warrant even a bill of impeachment from an opposition-controlled House of Representatives, it certainly isn't so severe as to deserve criminal punishment. By what possible standard could anyone argue that an abuse of powers does not justify removing the abuser from office, but does justify imprisoning him?
12.6.2008 3:23pm
JoelP:

Another reasonable limit might be to require that pardons only be issued after conviction.


Imagine if such a limit were in place after the Civil War...
To have a unified nation again, it was necessary for Lincoln to offer the entire South a full pardon. Meaning no criminal convictions. No civil liability. No trials whatsoever.
If he didn't have that power, Congress and the courts would have demanded blood, show trials, and punitive damages. We would not have a whole nation today.
12.6.2008 3:44pm
Tom Round (mail):
> "President Bush will pardon embers of his own administration"

I thought it was customary for Voloquistas to lapse into Russian - not Hungarian.
12.6.2008 4:03pm
Conrad Bibby (mail):
Although I was fairly outraged by Clinton's last-minute pardons, I'm not enthusiastic about a constitutional amendment. As a general matter, I prefer a strong executive. I really don't like the idea of Congressional efforts to sap power away from the president, whether it be the war powers act, the independent counsel law, or Nadler's proposed amendment to curtail the pardon power.
12.6.2008 4:27pm
trad and anon (mail):
After debating the question, the Framers concluded that this was not too great a power to give the President, despite the potential for abuse.
So what? The Framers didn't get to be the Framers by being possessed of exceptional wisdom, virtue, and knowledge. They got to be the Framers by being politically powerful at a particular place and time. And so they produced a Constitution that was a hodgepodge of unprincipled compromises between the powerful interests of the day (3/5 Clause, bicameral legislature), reactions to abuses of power in then-recent history (Third Amendment), heinous immorality (constitutional right to import slaves until a certain date), obvious fuckups (runner-up as Vice President), and really really good ideas (Amendments I, IV, V, VI, VII, and VIII should all be uncontroversial members of this category). We have, of course, done very well under it, and it is a much better Constitution than it might have been, especially after the Warren Court's decision to put some teeth into Amendments I, IV, V, VI, VII, VIII, XIII, XIV, and XV. But I don't think "the Framers considered this issue" is much of an argument. They considered who should be Vice President too.
12.6.2008 4:33pm
MarkField (mail):

To have a unified nation again, it was necessary for Lincoln to offer the entire South a full pardon. Meaning no criminal convictions. No civil liability. No trials whatsoever.
If he didn't have that power, Congress and the courts would have demanded blood, show trials, and punitive damages. We would not have a whole nation today.


Except that Lincoln didn't do that. It was Andrew Johnson who tried to. The effect of his indiscriminate pardons was to return the South to the rule of slaveholders and traitors. Congress therefore undid the pardons for the worst offenders in the 14th A (section 3). Note that Johnson did NOT pardon a good many of the traitors, e.g., Jefferson Davis, yet there was no blood, no show trial, and no punitive damages.

We did get 100 years of segregation out of the bargain, though.
12.6.2008 4:35pm
Real American (mail):
wow. usually democrats amend the constitution by having the Supreme Court do it for them.
12.6.2008 4:43pm
Glenn W. Bowen (mail):
Jerry Nadler is my congressman and a partisan rubber-stamp hack.
12.6.2008 6:47pm
EricH (mail):
To have a unified nation again, it was necessary for Lincoln to offer the entire South a full pardon

Pedantic time: Both Lincoln and Johnson offered amnesties since a pardon goes to an individual.
12.6.2008 8:33pm
Anderson (mail):
But I think it's reasonably clear that the framers envisioned impeachment and trial in the Senate as a significantly more robust remedy than it's turned out to be.

I think that's exactly right. They didn't imagine the Executive's being nearly as powerful as it's become, and they didn't imagine such a supine Legislative branch.

Nor do I think they envisioned a President who would pardon dozens of his henchmen en masse for crimes unspecified -- which may or may not happen, of course.

If Bush were to do that, then I think it would make sense to think how to amend the pardoning power. We absolutely cannot afford to have presidents who break the law with impunity and then pardon themselves and their co-criminals.

OTOH, perhaps such a spectacle would give Congress some backbone for impeachments in the future.
12.6.2008 9:14pm
Brian Kalt:
Anderson,

The Framers contemplated even worse than that. In the debate, Edmund Randolph worried that under the pardon power as drafted, the president would be able to pardon members of a treasonous conspiracy of which the president himself was the leader.

Randolph's attempt to amend the pardon power failed badly, because the Framers were willing to rely on the political process, including impeachment, and the criminal law, which could include prosecuting a president for engaging in such a corrupt abuse of power.
12.6.2008 9:21pm
Thomas_Holsinger:
This issue should definitely be explored at length during Senate Judiciary Committee hearings on the confirmations of Hillary Clinton and Eric Holder as Secretary of State and Attorney General, respectively.

Plus the Republican Senators on the committee should retain former Senator Fred Thompson and former New York City Mayor Rudolph Guiliani as special counsel to question the witnesses.

I'd pay money to watch such hearings.
12.6.2008 11:49pm
tsotha:
As others have noted, because of the time frame this is just grandstanding. Personally, I doubt Bush is planning to issue pardons to anyone relating to their duties in intelligence or the war, but we'll know very soon.

At work we have a pardon pool going. So far the names that keep bubbling to the top are athletes who lied to Congress over steroids. And Mike Milkin.
12.7.2008 6:32am
Smokey:
VFBVFB:
There should be an amendment that would allow Congress to override a presidential pardon by a two-thirds vote. The power to pardon is an example of where a branch of government can take a unilateral step that the others cannot check. A Congressional override would have prevented some of the egregious pardons such as Marc Rich.
This, to me, sounds like a reasonable proposal.
12.7.2008 7:04am
Steve2:
tsotha, this may be grandstanding coming from Nadler at this point in time, but I don't think that means it's an idea without merit.

Morever, I don't think the reasons Kalt gives for not inserting the amendment are very persuasive. What he said,

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.

seem to me to be little more than appeals to tradition. While I don't suggest we adopt the California (simple majority gets to amend the constitution), Alabama (798 amendments and counting), or Hawaii (three constitutions in three decades) methods, I think there's a case to be made that amending the U.S. Constitution more often, to be more specific and deal with more granular issues, would be a good thing. Even if all we're doing is just updating the language to the contemporary style every half century or so, to ensure there's no more "what effect did a comma have 230 years ago?" disputes, that strikes me as a good thing to do.
12.7.2008 8:12pm
Cornellian (mail):
Just for fun I Googled up a copy of the Alabama constitution.

Section 182 prohibits people convicted of "miscegenation" from voting.

Section 256 says:
"Separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race."

I seem to recall an initiative to repeal section 256 failed a few years ago.
12.7.2008 10:16pm

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