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.”
And
also:
“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.
Is PPRA a practical
reality?
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.
Budd
Shenkin
PS
– Here is Federalist # 74
http://avalon.law.yale.edu/18th_century/fed74.asp
The Command of the Military
and Naval Forces, and the Pardoning Power of the Executive
From
the New York Packet.
Tuesday, March 25, 1788.
|
To the People of the State of New York:
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.
PUBLIUS.
I
