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.
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 ).
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?
Another reasonable limit might be to require that pardons only be issued after conviction.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
I thought it was customary for Voloquistas to lapse into Russian - not Hungarian.
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.
Pedantic time: Both Lincoln and Johnson offered amnesties since a pardon goes to an individual.
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.
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.
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.
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.
Morever, I don't think the reasons Kalt gives for not inserting the amendment are very persuasive. What he said,
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.
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.
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