Pardons - Mend 'Em, Don't End 'Em

by publius

I'm not a huge fan of the presidential pardon power. If I had my druthers, we'd amend the Constitution and get rid of it entirely (Eric -- echoing warnings from the Anti-Federalists -- provides a few examples of how the process can be abused).**

But there are of course legitimate reasons to keep it. For instance, I have a fairly dim view of our state criminal justice systems, and the executive has more structural freedom to correct gross injustices at this level. [UPDATE -- I'm an idiot. As Ugh notes in comments, the President can only pardon for federal offenses. My bad -- I still don't like the power though.] But the power to correct these gross injustices necessarily provides the president with a way to use the pardon power to help cronies or (even worse) to cover up his administration's criminal behavior.

So here's my proposal -- I think we should amend the Constitution to limit the pardon power. Mend it, don't end it. Specifically, the president should be forbidden from granting a pardon throughout the lame duck period. From Day 1 to Year 4, Election Eve, the president would have the power to grant pardons. After that, he or she would be prohibited from doing so until the next inauguration. The idea is provide some sort of political check on the process. If Clinton wanted to pardon Rich, or if Bush wanted to preemptively pardon Cheney, they would have to do so before the voters went to the polls.

It would be even better if we followed Professor Levinson's advice and got rid of the lame duck period altogether. But until that day, limiting the pardon power might help.

[**UPDATE 2: I don't do this very often, but I deleted a link and reference to a post which I (in my haste) thought responded to the merits of Eric's post, but really didn't. I shouldn't have included it, and I know that I'm outside the window for deleting this. But it was driving me crazy, so I've deleted it. I apologize, but I also think it's tangential to the substance of the post.]

Comments

[Eric Martin]

but see McArdle

A true libertarian paragon. Her concern is in all the right places...

[Ugh]

For instance, I have a fairly dim view of our state criminal justice systems, and the executive has more structural freedom to correct gross injustices at this level.

I don't think the president can pardon people for non-federal crimes.

[Ugh]

A better fix would be to require 2/3rd of each house of congress to concur within X days of the President submitting a pardon to them in order for a pardon to take effect.

[Ugh]

What will be interesting is if Bush grants Cheney a pardon, will he accept it, because he would have to admit he was guilty of the offense pardoned. Knowing Cheney, he'll have Bush issue a pardon, and then refuse to say whether he accepts or not, and if anyone starts investigating him he can refuse to cooperate on 5th A. grounds, and then if it looks like he'll actually be put on trial and convicted, he can then accept the pardon.

[publius]

ugh - fixed. thanks. that was pretty dumb of me

[Porcupine_Pal]

The pardon power could usefully be exercised under Jack Bauer circumstances, where someone administers torture 'for the greater good'.

The pardon power could also be exercised for other arguably exigent circumstances, where telecom providers are prevailed upon by the government to conduct warrantless surveillance.

And so on.

[Scott de B.]

A better fix would be to require 2/3rd of each house of congress to concur within X days of the President submitting a pardon to them in order for a pardon to take effect.

Isn't that an extremely high barrier to cross? At least 1/3 of the Senate would vote against any pardon by a President of the opposing party purely from spite.

[Ugh]

Also, I should note that, contra McArdle, I didn't read Eric's post as "excusing" Clinton.

Uhhh...is she always that stupid?

[Ugh]

At least 1/3 of the Senate would vote against any pardon by a President of the opposing party purely from spite.

I don't think that's true. It might be true of things like the Libby/Rich/Iran-Contra pardons, but that would be a good thing. It would be a way of ensuring that those receiving pardons are truly deserving, which is what the Justice Department process is supposed to do, but that's pretty much broken.

[efgoldman]

I've been doing a lot of thinking about presidential pardons in general and anticipation of what Bush might do on the way out the door, specifically. I've also been reading the (deservedly) nasty reactions to Ruth Marcus' WaPo column of a week or so ago in which she suggested that in not prosecuting the Bush gang specifically, and highly-placed malefactors generally, "...what's most crucial here is ensuring that these mistakes are not repeated. In the end, that may be more important than punishing those who acted wrongly in pursuit of what they thought was right."

The more I think about it, the more I conclude that the prime mistake was Ford's pardon of Nixon in 1974. It set a really bad precedent. Sure, zillions of Nixon's subordinates went to jail, including his top two White House aides, one or two attorneys general, and the acting FBI director.

Ford's public explanation was that he wanted to end the "long national nightmare" of Watergate. But the overriding principle of all the investigations, both legal and Congressional, was that no-one, not even the president is above the law. [I listened to almost all the hearings at work, and went back and watched them on PBS at night. There was no C-Span yet.]

Certainly, if there's one thing that Bush, and especially Cheney, are claiming, its "Oh, yes we are."

Ford, in pardoning Nixon before any indictment or trial, basically gave permission for that mindset. Three decades+ later, guess what? Its come back to bite us in the ass.

[PaulW]

I've posted this before, and prolly on this blog (perhaps elsewhere) that the President CAN NOT and SHOULD NOT be able to pardon any person who had worked for his administration or had provided any fund-raising for that President's electioneering at any time of his/her career. It prevents him from dangling a "Get Out of Jail Free" card to any persons like he was able to provide to Libby after his conviction on the Plame scandal. Yoo, Addington, Cheney, Rumsfeld, Gonzales, Rove, and all of their lackeys probably kept their mouths shut knowing there would be a pardon for them if and when the sh-t hit the fan. It might be why Cheney and Bush are blabbing their heads off now, and why more details about the torture and wiretap regime are coming out: basically bragging about what they're about to get away with. Once staffers realize there's little chance of a pardon down the line (they will have to depend on the mercies of the following administrations) they may be more reluctant to pull off any criminal endeavor... or at worst do a better job of hiding it... sigh.

[Matthew Ernest]

How would a limitation on "lame duck pardons" put a political check on a second-term president who by definition is not running in that election? I don't see what changes if Mark Rich is pardoned on Halloween.

Drawing on some of the previous comments, what I think is a needed limitation is that there must be a conviction and the pardon must specifically apply to that conviction, so that we know what is being pardoned.

[KCinDC]

Matthew, the requirement for a conviction would prevent things like the pardon of Vietnam War draft evaders and Confederate soldiers.

[KCinDC]

And preventing lame-duck pardons wouldn't provide as much of a check on presidents who aren't running for reelection, but it would provide more than we have. Most presidents do want to be succeeded by someone from the same party, and the public usually holds the president's misdeeds against the candidate from the same party to some extent.

[publius]

Right - what KC said

[Ugh]

This has got me thinking about what a strange combination of historical accident and perfect storm we've gone through with the Bush presidency (warning: long, off-topic comment ahead).

First the historical accidents. We have Jeb Bush failing in his first run for Governor of Florida, which caused his father and the various interests surrounding him to shift their sights to W. as the heir apparent in 2000, despite his obvious failings.

Then we have a combination of those same interests and Rove sabotaging McCain, who it seems in retrospect should have been the rightful GOP nominee in 2000, absent such interests and Rovian machinations (not that a McCain 2000 presidency would have been any less disastrous).

Then we have W. being stupid enough to pick the person he put in charge of his Veep search for Veep. I have this image of Cheney presenting the results of his search as "I've looked long and hard at who is most qualified to be your Vice President, and the answer is: me." Tho' maybe he was smart enough to line up a few obviously lesser qualified persons with himself (and to be fair, as a former defense secretary, white house chief of staff, congressman, etc., he was qualified for the job, at least on paper).

And then we have the 2000 election, where Gore won the popular vote, and where it seems overwhelmingly likely that more people in Florida went to the polls intending to vote for Gore than Bush that year, yet Bush won due to a flawed Gore recount strategy and SCOTUS nonsense opinion.

Once in power, the Bush administration might have bumbled along and been voted out in 2004 (or not, who knows) absent extraordinary events, but then we get extraordinary events in spades, 9/11 and Anthrax. All of a sudden his approval rating zooms to 90+% and this is when the perfect storm for Cheney kicks in.

He's the consummate bureaucratic operator, knows how to get things done, how to get them done in secret, and how to do it leaving few tracks. 9/11 combined with what seems to be a disinterested President who can be manipulated into doing what Cheney wants (or one that doesn't need to be manipulated) gives Cheney free reign to implement his vision of a "strong executive."

And here he goes hog wild. He rolls back all the restrictions on executive power that resulted from Watergate, in secret, implements the torture regime, gets his invasion of Iraq, discredits the CIA to allow the ascension of DoD and his friend Rumsfeld in intelligence matters (and here keeping on Tenet from the Clinton administration was critical, I think, as Tenet and CIA could always be pointed to as suspect), and gets the OLC at Justice to rubber stamp everything as legal to provide for future defenses, pardon or no pardon.

And the consequences for Cheney (and Bush)? He's unpopular.

[efgoldman]

Sorry, folks. If Ford's pardon of Nixon, in a very different time, didn't start any movement toward a constitutional amendment to change the president's pardon power, nothing Bush does will do so, either.

In any case, the process, if it succeeded (highly, highly unlikely) would take years, perhaps decades. Ex post facto is also forbidden in the constitution. All this talk is just fantasyland.

[KCinDC]

EF, I haven't seen anyone thinking of amending as a way of preventing the Bush syndicate from escaping justice. This is about preventing the next criminal conspiracy in the White House, which is likely to be worse, and include alumni of this one, if history is any guide.

[efgoldman]

KC point taken.

I think the tone of some posts (here and elsewhere) might lead some to believe that the object is to prosecute the current crop of miscreants. Not that I wouldn't love to.

When I was a kid and went to the Saturday afternoon westerns, I was always disappointed when the bad guy got shot instead of getting caught and standing trial.

A process liberal by ten years old!

[Mike Schilling]

that was pretty dumb of me

Perhaps you were influenced by The Shield where the Feds granted immunity to Vic Mackey for all the state crimes he'd committed. (That was really dumb.)

[Gary Farber]

Whoops, turns out you can reverse a pardon if you act really fast.

[Henry]

Excellent idea to get rid of the pardon power during the lame duck period. Why not also prohibit its use to benefit executive branch employees? Its purpose obviously isn't to allow the president and his henchmen to commit crimes without fear of punishment.

[Anne E]

I like the idea of "no lame duck pardons" but my first thought was that under that rule, Bush would SIGN the pardon on Oct. 30 but release it Nov. 15, escaping scrutiny from the voters. I don't see how you could stop him from doing that.

I also like the idea of amending the constitution to say "no pardons for executive branch employees given by the president they served under for acts while in office". That's a REALLY good idea.

If you made pardons contingent on concurrence by congress, that would defeat one of the valid purposes of the right to pardon- to set right miscarriages of justice that occurred because the process of justice had been inappropriately politicized. For an example, take federal prisoner Patricia Hearst- who was kidnapped, raped and terrorized by a terrorist cell, and then prosecuted as though her participation had been completely voluntary. The trial judge did not allow any evidence of the severe coercion she had experienced. (Since I lived in the SF bay area in the 1970s, I remember the total public hysteria that surrounded her case.) Her sentence was appropriately commuted by Jimmy Carter, and she was appropriately pardoned by Bill Clinton. You would never have gotten either pardon through congress- they would all have been afraid their opponent would use it against them: "soft on commie terrorists!" or "special favors for the rich!"

[tom p]

As per my post on the earlier thread (cheney/chain gang) I don't think it matters. Bush won't pardon anyone because they already have all the legal cover they need.

An OLC opinion seems to be the law. If one can get a compliant lawyer in the OLC... WHO CARES about pardons? Pardons aren't even needed.

This is the real problem, especially in light of the fact that half of what OLC does, never sees any light.

Any lawyers want to correct me? I could well be wrong, I am only going by what I have read, but if I am correct, pardons are not the problem, OLC is.

[liberal japonicus]

The way to stop Bush from pardoning lies within the notion that pardons will taint his legacy. Of course, someone might say 'what legacy?!?', but if the general notion arose that pardons of major figures represent Bush uncertain about the validity of what he did, he would simply not do them. Framing this along the lines of the perquisites of the President would probably ensure that he does do that, because that would plug into the notion that Bush is safeguarding the importance of executive power, while framing it along the lines of Bush admitting that mistakes were made under his watch would have me not even consider it.

[Henry]

Anne E writes, "I like the idea of 'no lame duck pardons' but my first thought was that under that rule, Bush would SIGN the pardon on Oct. 30 but release it Nov. 15, escaping scrutiny from the voters. I don't see how you could stop him from doing that."

Easy. We're talking about amending the Constitution, so we can do whatever we want. State no pardon that is not publicly announced prior to a certain date shall be valid.

[KCinDC]

If OLC is figuring out ways to tell the White House that anything they want to do is legal, then that's a problem, but the bigger problem is accepting that as a 100% defense. If a lawyer for a mobster or a corporation assures them that what they're doing is legal, that doesn't get them off the hook, so why should it work differently for the White House?

[KCinDC]

LJ, we'd better get some people out there framing pretty damn quick, then.

[Gary Farber]

"If a lawyer for a mobster or a corporation assures them that what they're doing is legal, that doesn't get them off the hook, so why should it work differently for the White House?"

I don't think in the least it should, but the obviously problematic aspect is that (within limits), the Justice Department works for the White House. Keeping the Justice Department more than nominally independent is dependent on a variety of circumstances, including who is in office. The Saturday Night Massacre reminds us of this.

John Yoo reminds us of the flip side.

[Josh Yelon]

I'm not convinced it would require a constitutional amendment. The constitution is extremly brief on the subject:

"he shall have Power to Grant Reprieves and Pardons for Offenses against the United States"

That's the whole thing. What it doesn't specify is the process by which pardons shall be granted.

I could imagine that the congress could pass a law indicating that in order to pardon a crime, the president must wait until a jury determines that there has *been* a crime. In other words, the president would not be able to pardon until the trial was over. This seems more an interpretation of the constition - the idea that you can't pardon a crime unless the system has determined that there has been a crime - than an actual "change" to the constitution.

Given the speed of the judicial system, that would effectively mean that only the subsequent president can pardon the crimes of the previous administration.

Of course, if someone in the administration had committed a crime, they could deliberately turn themselves in, plead guilty, and get the trial over with fast. Then they could ask the current administration for a pardon. But at least that way, the crime would be confessed.

[Gary Farber]

"I could imagine that the congress could pass a law indicating that in order to pardon a crime, the president must wait until a jury determines that there has *been* a crime."

IANAL, let alone a constitutional lawyer, but I have read quite a bit about constitutional law, and I'm pretty sure this is not possible absent a constitutional amendment. The Congress has no power to limit a constitutional power by mere law. That's pretty much all there is to it. If you want to limit a constitutional grant of power, you have to amend the constitution.

If it were otherwise, the entire concept of "constitutional rights" would go out the window: the Congress could similarly limit, by mere law, any of the bill of rights or any other power granted in the Constitution. The entire point of the Constitution would no longer exist. It just doesn't work that way. Congress can't just up and change a constitutional power without a constitutional amendment.

[Hartmut]

There was a case decided by SCOTUS (forgot the name) that set the precedent of practically unlimited presidential pardon power. The case of self-pardoning is yet without precedent (Nixon thought about it but decided not to push it).
---
My version of the amendement (once again):

The constitution of the United States shall thus be amended:

1. The president may pardon only specific persons for specific crimes that they have been convicted of.
1a. Preemptive pardons and/or pardons that do not exactly specify the crime they apply to are nil and void.

2. Pardons shall not be given for crimes comitted by or on behalf of members of the executive branch without the consent of the US senate expressed by a majority of 60% + 1 vote.

---
In the cases of the Vietnam draft dodgers or the soldiers of the Confederacy congress could have done it by law.
Or there could be a third clause that requires a simple majority consent for pardons that cover groups (as opposed to individual persons)
---
Another loophole is the commuting of sentences as in the Libby case. My proposal there is that the president should only be free to commute death sentences* while in all other case congress should have a right (not necessarily duty) to intervene. This should be exempted from any filibuster etc., i.e. in case of demand there has to be a vote.

*to imprisonment for life

[Joe]

Professor Levinson, as comments repeatedly noted over there, is naive and biased (as to the current President) to think that we don't need ANY lame duck period. You need time to get ready.

The pardon power might be checked in some way, but really, it's breadth is matched by prosecutorial discretion. There are mandatory punishments, but not mandatory prosecutions.

Likewise, the pardon power has several uses. It is strange you focus on state justice systems as if there aren't various problems with the federal justice system as well. The use of pardons in the Vietnam (or Whiskey Rebellion) contexts also underline its value.

As to "lame duck," Clinton couldn't run for re-election in 2000 anyway. Sure, then his v.p. was running, but especially if he wasn't, would that really affect how a voter would vote? What if the other party candidate is favored?

What real value is that?

[ThatLeftTurnInABQ]

As to "lame duck," Clinton couldn't run for re-election in 2000 anyway. Sure, then his v.p. was running, but especially if he wasn't, would that really affect how a voter would vote? What if the other party candidate is favored?

What real value is that?

Considering that the Lewinsky scandal and various other bits of tarnish on Bill Clinton's Presidency were considered by many observers to be a drag on Gore's 2000 campaign, I'd say it might have some value in the general case, but how much is impossible to quantify. It probably wouldn't help a candidate to have a President from their own party make scandalous use of the pardon power, however.

In general terms I think we are barking up the wrong tree here. The Constitution limits the pardon power of the President by restricting it to not apply to cases of impeachment. It seems to me that the Founders did not intend for impeachment to be something that was used (or at least threatened) only once per century, and that the pardon power has become an avenue for lawlessness not so much for reasons inherent in it, but because we are unwilling to use impeachment in the manner it was intended - as a more direct check on a lawless and out of control executive.

Obviously there are historical reasons for this state of affairs, e.g. the rise of organized political parties and a shift in the structure of power rivalries within the US political system away from institutional rivalries between the 3 branches of the Federal govt. in favor of partisan rivalries between the parties, and the greatly expanded size and power of the executive branch (compared with the other 2 branches) as a result of the growth of an American empire and the rise of the national security state. But the problem here is not so much that of having an unlimited scope for pardons, but rather of having too restricted a scope for impeachments.

[Sebastian]

"It seems to me that the Founders did not intend for impeachment to be something that was used (or at least threatened) only once per century, and that the pardon power has become an avenue for lawlessness not so much for reasons inherent in it, but because we are unwilling to use impeachment in the manner it was intended - as a more direct check on a lawless and out of control executive."

I think this is true and not just of the executive branch. I think that the founders saw impeachment as a real tool that would be applied fairly regularly when needed.

[Z. Mulls]

I'm in general agreement with the notion that Congress needs to be able to have some say, but the bar needs to be set high. It should still be a Executive Power. Just not totally unchecked.

I'd favor Congress being able to *overturn* a pardon with a 2/3 vote. might favor a lame duck element to the language, or, as someone suggested above, forbid the President from pardoning anyone who worked in any capacity for him, or contributed to his campaign. (Or hers).

Actually, since it's hard to draw the lines where someone *is* involved with the President or *is not*, I'd suggest the President can only pardon acts committed before any term in which s/he served as Vice-President or President. So Bush 41 would not be able to pardon the Iran-Contra folks (since he was VP at the time). In other words, no pardoning people who did something wrong while you were in charge.

The downside to that is that someone who deserves a pardon might have to wait 16 years....

[KCinDC]

I fully expected Bush to give out all sorts of hideously corrupt pardons to his cronies and henchmen. I also knew Bush was the most incompetent president of my lifetime. But for some reason I never connected the two facts and predicted that he would manage to screw up the process of pardoning someone, something other presidents have managed without any complications.

I really don't understand why he's backing off on the pardon anyway. Surely he's not afraid of looking bad. It's far too late for that.

[low-tech cyclist]

The key reform, IMHO, would be to forbid the President from pardoning himself, the Veep, and anyone he'd appointed to any office while President.

But the 'no lame duck pardons' idea is also good.

[Bernard Yomtov]

But for some reason I never connected the two facts and predicted that he would manage to screw up the process of pardoning someone, something other presidents have managed without any complications.

Me too. I think the most interesting aspect of the Toussie affair is Bush's inability to do even the simplest thing without f***ing it up. What a bungler.

[Gary Farber]

"I think the most interesting aspect of the Toussie affair is Bush's inability to do even the simplest thing without f***ing it up. What a bungler."

I wish I could join in, but this seems an awful lot like arbitrary selection bias to me. Bush has done a bunch of other pardons without fuckups. This hasn't made him a bungler. Bill Clinton did a bunch of pardons without that making him a fuck up. He fucked up one pardon. Now Bush's people have trivially caught a fuckup before it went thorough.

I'm unclear how we get from this, and this alone, evidence that G. W. Bush is particularly a fuckup.

We get that from most of the rest of his administration, but using this bit of trivia as proof seems beyond strained to me. If he can't do this simplest thing without a fuckup, how does that explain all the other dozens of non-fucked up pardons? It just doesn't hang together logically.

Note: I'm not speaking to the proposition of How Big A Fuck-up is President George W. Bush? I'm speaking to the logic of how we derive our conclusions.

Comments like this seem like just lazy cheap shots (at a guy who deserves, them, to be sure, but I'd rather focus on the serious crimes, like torture, invasion under false pretenses, illegal eavesdropping, and so on).

[KCinDC]

Now Bush's people have trivially caught a fuckup before it went thorough.

I'm not sure that's the correct description of what's going on. Why do you think he's recalling the pardon? Because it doesn't fit the guidelines? Seriously? If that's true, then we certainly don't have to worry about any pardons of criminals from his administration, so that would be a relief.

It seems more likely that the real reason is that he decided it looked bad, though wy he thinks that matters in comparison to everything else is hard to understand. But now by doing this unprecedented thing he's called much more attention to it. The story would already be over if he hadn't done it. So I remain mystified.

I also don't understand what Clinton's pardons (or the pardons of all the previous presidents who managed to do it without having to call for a takeback) have to do with anything.

No one's claiming that this is the worst thing the guy's done, just that it (like the shoe throwing) is a fitting symbol of one facet of this eight-year disaster.

[UNRR]

This post has been linked for the HOT5 Daily 12/26/2008, at The Unreligious Right

[Bernard Yomtov]

Gary,

My point is not that he's a bungler because he pardoned Toussie (or didn't). My point is that he couldn't manage a simple process cleanly.

In other words, I didn't intend to comment on the merits of the pardon, merely the ineptitude with which it was handled.

It's as if the President intends to veto a bill, but forgets to do it and lets ten days slide by, so it becomes law. Whatever one thinks about the bill, this would be a blunder.