Amending the Presidential Pardon Power of the Constitution
The Presidential Pardon Reform Amendment
Being of an optimistic nature, at least at times, I can see this terrible Trump period as an interlude, a long and destructive one qualifying not just as a political (and moral) correction but rather as a full-fledged bear market, but an interlude nonetheless. America has risen from ashes more than once to be stronger and more just. So I am looking forward optimistically to the Trumpgate reform era. I'd like to think there would be Nuremburg-like hearings, perp walks, orange jump suits, national humiliations and referrals to the International Court of Justice for Crimes Against Humanity, steps that would serve justice, expiation, and deterrence. That's a dream. But realistically, we'll probably have to settle for reforms. But if they are good ones, in the end that will be good enough.
Most reforms will take the route of legislation. It's possible, however, if the anti-Trump tide becomes very, very strong, that this time may be a little different,and that Constitutional amendments might be considered in addition to legislation. The odds are always against a Constitutional amendment because they are so hard to do – two-thirds of each house of Congress and then three-quarters of the states are necessary. Still, it has happened 17 times since the first 10 were passed in 1791. Some have had profound importance, such as XIII and XIV after the Civil War, and XIX, women's suffrage, after that decades-long movement. Other more obscure amendments have been more like minor housekeeping. But who can tell when the next ones will declare themselves important and be passed?
Of the currently suggested amendments, the more profoundly needed ones will probably not make the grade. To succeed, amendments need both vigorous sponsorship and little opposition. Lack of opposition can arise from profound changes of power (Civil War) or opinion (suffrage), or because no one else's ox is sufficiently gored for that opposition to mobilize (issues of Presidential succession, forbidding a sitting Congress to raise its own pay.) I think this time there is one issue that might get through, though, depending on Trump's actions. I'll come to that possibility after mentioning a few others that would be more important, but which are unlikely to pass.
The range of possible amendments
The most needed amendments face long odds for passage because, no matter how impassioned the support, there are vested interests strongly opposed. For years the original 1787 compromise on state representation has caused great unfairness in the Senate and the Electoral College. In the Senate Wyoming has 2 Senators representing 550,000 people, while California has an equal number of Senators representing 40 million. The Electoral College system has elected both Bush 43 and Trump without a plurality of the popular vote, again by over-empowering smaller states. Yet, Constitutional amendments correcting this over-tilt toward the small states will be opposed by … well, the small states (and the conservative interests who are allied with them), and without their voting for their own diminution of power, there is no deal.
Similarly, a Constitutional amendment revising the much-reviled Citizens United SCOTUS decision, a decision that delivers excessive power to the corporations, will have great trouble being passed because … well, because corporations wield great power. At some point both of these situations will have to be revised, but it's hard to see how that happens without profound changes in the politics of the country, which could and should happen, but surely that time has not come yet.
A third possibility for amendment arises from the Merrick Garland spectacle, where the vague term “advise and consent” was interpreted in an excessively partisan manner by Mitch McConnell and the Republicans. A related fourth possibility would be limiting a Justice of SCOTUS to a term of perhaps 15-20 years. It is possible there would be enough intensity to wage the battle for these amendments, but it would seem that but the force of conservatism and partisanship would have to subside to an extent not currently foreseeable. One can hope, and the opposition to these would be less than for the first two. The proposed changes would be closer to housekeeping than marking a profound change of power, so they could pass, if not immediately. We shall see.
There is a fifth possibility, however, that although it is not so basic an issue as any of the above, it is also not so threatening to any constituency, and I could see it being pursued and passed if the proper conditions ensue. What would be the proper conditions? That would entail Donald Trump seeking to assert the power of the Presidential pardon to curtail the Russia investigation, to protect himself from that involvement and/or his financial infringements of the law, or doing the same for his family and/or his associates. It is this possibility I want to pursue in the rest of this post.
The problem with pardons
If Trump chooses to further misuse the Presidential pardon – he has already misused it simply by mentioning the possibility of using it in the current Special Counsel investigation – the cry to revise the system of Presidential pardons could become overwhelming. In that case, we could have The Presidential Pardon Reform Amendment (PPRA).
The President's ability to issue pardons is currently unfettered. There have been apparent miscarriages of justice in recent year related to this unfettered ability. The first instance I cite here is President Ford's pardoning of Richard Nixon to save the nation the convulsion of a trial and the inevitable sharpening of differences in an already acutely divided country. Just because a pardon is controversial doesn't mean it was wrong, and in Ford's defense, it might or might not have been a misjudgment, but it was not self-interested. In fact, he knew at the time it would hurt his chances for reelection, as indeed it did. Still, this pardon might have been a misbegotten profile in courage. What it certainly did was to hijack the course of justice and the faith of Americans in equality before the law, and to place the President in a separate category from ordinary citizen.
Far more egregious was President George H. W. Bush's 1992 pardoning the perpetrators of the Iran-Contra scandal, which was issued as a lame duck after he had been defeated by Bill Clinton. Iran-Contra was a particularly seedy and nefarious scheme of the executive branch to deceive the legislative branch in important policy decisions of war and peace. The miscreants were very prominent and powerful establishment people, many of whom were personally close to President Bush; they were relieved of probable conviction and prison terms. Not only was deterrence and equality before the law poorly served by these pardons, but those involved themselves were not sufficiently chastened. Since they were not convicted, they were not only not punished, they were also not publicly shamed. Even today we are faced with one of those pardoned, Elliot Abrams, unabashed, ready to serve the present Trump Administration in an official capacity in the same Latin America area where he funded death squads in the 1980's, and from which he should rightfully be banned. And even more than this: President Bush had only narrowly missed being one of the indicted, his ties could have been further elucidated by continued prosecution, and thus the pardon was close to a self-pardon. See this contemporaneous account: https://archive.nytimes.com/www.nytimes.com/learning/general/onthisday/big/1224.html#article.
To my mind this pardon was execrable, and is insufficiently appreciated as such. The perpetrators still think they were right to do what they did, damn the laws and the Constitution. In their minds they were righteously fighting Communism. The should have been able to think that from prison.
President Clinton had his own well-publicized last-day-on-the-job pardon that further besmirched the dignity and probity of his Presidency. He pardoned the shameless arms dealer Mark Rich (and Pincus Green as well) who traded with countries and people forbidden by United States law, and whose wife was a Democratic donor and Clinton supporter and intimate. More sordid than subverting the Republic, Clinton issued the pardon and slunk away, too naughty to be shamed. Once again, the principle of equality of the law was vitiated. Friends in high places is a particularly debilitating disease for a republic. https://www.justice.gov/archive/pardon/adams1.htm.
And now we are faced with the amoral Trump Crime Family Presidency. The Founding Fathers did not harbor illusions that Presidents and officials would be angels, but it seems clear that they never thought the Presidency would sink to the level of our current experience. Would they ever have imagined a President holding the scepter aloft with a pardon to bless those who will “stay strong” with omerta and those who are members of his own family? Did they imagine the President holding pardons as a threat against the working of justice of the state?
In sum, misuse of the Presidential pardon now seems less an aberration than a pervasive practice. The progression of poorly deployed pardons has become a tool contaminated by malignant precedents.
The Federalist Explantion
The detailed explanation for how the Presidential Pardon came to be is given by Hamilton in Federalist #74. He takes almost for granted the need for a pardon ability to be lodged somewhere, because the law is a blunt weapon, and there must be release from the accidental unwarranted cruelty of such a blunt instrument that in inappropriately applied. Human judgement and human mercy must have a place in the workings of the state. Hamilton takes more pain in thinking about whether the pardon should be lodged with just the chief executive, or distributed more broadly among a group. He opts for the individual on several bases, including this observation:
“The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.”
“It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever.”
Hamilton can't seem to help it – in that day of giants, even though they had their share of thieves, sharpies, and dullards, he couldn't help but see the President as a man of high character. We know better. The years have given us more information of theory in action than was available to Hamilton and Madison. Their arguments and theories still hold, but their choices were not extensive enough. They assumed the need for pardon, as we should also. They then posed their choice, however, as that between lodging the choice in just the President or in a group. It seems to me we can postulate a third choice.
The case for the Presidential Pardon Reform Amendment (PPRA)
One way of limiting the Presidential options would be to make certain classes of pardons illegal – family members, for instance, or making certain crimes ineligible, or making preemptive pardons ineligible. The possibility of self-pardon could also be clarified by specifically excluding it. The problem with making the eligibility for pardons more specific, however, is that it is always impossible to cover every nefarious possibility. You can never specify every disadvantageous situation that will occur, and a clever perpetrator will usually find a way around a prohibition. Instead, I propose that we find a solution between the single chief executive and a group decision. I propose we use the principle of requiring a co-signature:
I propose a Constitutional amendment whereby the power of the President to pardon is abridged by requiring the cosignature of the Speaker of the House of Representatives.
This is not a foolproof solution. The two individuals can conspire toward a common end, which would be especially possible when both offices were held by the same party. Two office holders of poor character would not be an unknown situation; such unworthy characters could well trade favors in behalf of cronies. But imagine how much more unlikely the unwarranted pardon would be if two signatures were required rather than one. Imagine how much more difficult it would be to perpetrate an assault on the integrity of the state if two signatures are needed rather than one. Imagine the enhanced vigor that would be experienced by the House in this era that has handed so much power to the Executive, which the founders imagined would be much the weaker institution.
How would it have worked in the past?
How would a co-signature requirement have affected the three pardons cited? When Ford was President the Speaker was Carl Albert, a centrist Democrat. Would he have confirmed Ford's choice? Probably yes, which would have provided good cover for Ford; the choice would have been seen as one of the ongoing Establishment, rather than that of a single actor. If he hadn't assented, well, who knows what would have happened? In any case, it seems somehow more just for an institutional decision to be made by a wider group than a single person. Different pardons are different.
The Speaker of the House for Bush's pardon was Tom Foley, another Establishment Democrat. I would say it would have been highly unlikely that Foley would have approved this self-serving pardon and justice would have been well served.
The Speaker of the House for Clinton's last-minute pardons was conservative (and currently jailed) Republican Dennis Hastert. There is no way in the world he would have approved the Clinton rush job. Justice delivered.
On the other hand, for every reform there are Unforeseen Consequences. What might these be for the Presidential Pardon Reform Amendment? It is by definition hard to see the unforeseen. As Hamilton observed, there might be a loosening of the sense of responsibility for delivering justice when the responsibility is more diffuse. The bureaucratic procedures that now exist within the DOJ might be more pervasive and forestall just but politically dangerous acts of charity. It's hard to say.
Possibly the worst UC would be that pardons enter more fully into the partisan political process. Trading in pardons between the President and the Speaker as leader of each of their parties might abrogate the quality of mercy, which would be an awful shame.
It's amazing that, when all is said and done, when institutions and laws are manipulated, in the end, it is the quality of the human beings involved that makes the biggest difference.
To pass a Constitutional amendment, the issue must be one of manifest importance so that enthusiasm and intensity is high, and yet of low controversy. For enthusiasm to be high enough, Trump would have to use the pardon power even more egregiously that he has so far. The odds of this occurring are high. If Trump starts to brandish the power of the pardon to protect himself, or if he has already done so and it becomes more obviously apparent, I can't imagine that the need for the amendment wouldn't be obvious.,
So, then, who would be against the PPRA, and how intensely? The most intense opposition for proposals emanates from vested interests, from one's ox being gored. It is this element that sets the PPRA apart from other possible amendments, because it's hard to discern which significant vested interests would oppose it. There might be principled opposition by those who support a super-strong presidency. There might be principled opposition by those who fear the entry of the pardon system more routinely into the political system with its wheeling and dealing, its trade making, its partisanship. But if the Trump pardon misuse outrage becomes outrageous enough, it will be obvious that norms will have to become laws, and something will have to be done. The PPRA might become necessary in those circumstances. I could even well imagine that passing this amendment could become part of the process of healing the rift between the parties.
It is a shame is that the other amendments that have been mentioned are more central to improving the republic – electoral and representational reform and Citizens United are more important. I wish they would be possible, but I could only see that if the politics of the nation undergo a major change, which it could, but it will take years. Meanwhile, I'd grease the wheels of amending the Constitution by instituting a co-signature requirement for the Presidential Pardon. And who knows, maybe the process of passing PPRA will grease the wheels for these more important reforms.
PS – Here is Federalist # 74
The Command of the Military
and Naval Forces, and the Pardoning Power of the Executive
THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.'' The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.
"The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers.'' This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.
He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.'' Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.
The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.
On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.