A Restriction on Presidential Pardons

Great Debates
1

In the various Scooter threads it has been brought up as likely that Bush would give Libby a full pardon immediately before he leaves office, like Clinton did with a large number of people. This seems to me to be a political fallout free move. At this point you are out of office and no longer able to be held accountable by the electorate; and the election is well past decided, so there is no risk of hurting your election chances or those of a fellow party member.

I think that this is bad for the country. The President is given certain liberal powers who’s only check is their political repercussions. When those powers are exercised at the end of his term, that check is removed. I therefore suggest that the power to grant pardons, and perhaps certain other select powers, should be restricted to before one week prior to the holding of the election for the office of President. If the sitting President should win re-election, then this power is reinstated. If he should fail, or if he was not running, the full power shall not be available until his replacement takes the oath of office.

As it is recognized that there may be conditions that need to be addressed immediately during this down-time, I would further suggest that the President be able to grant pardons during his lame-duck period only with consent of his replacement, or perhaps Congress if there is a legal difficulty in allowing a President-elect to make such decisions.

Lastly, I would allow the President, during the one-week period before the election, to be able to delay execution of a sentence until after the election when he will then be able to address the pardon issue.

What think you?

2

I don’t think much of it at all. I can envision a situation developing where Congress or the court system is playing chicken with the White House by delaying sentencing in such a way as to force a pardon at a particular time, or passing a law that would necessitate the same thing.

The pardon power is a necessary check on both the judicial and legislative branches. Most people do not appreciate how much that is true. And for that reason it ought to be left alone.

Now, corruption in connection with the pardon process is not protected, as Tennessee governor Ray Blanton found out some years ago.

3

Perhaps I am not thinking creatively enough, but what situation are you imagining, that they delay sentencing until soon before the election so that a pardon must be done very close to the election, thereby making it fresh in people’s minds? If he sees it as important enough, then he can pardon the person anyway, only now he has to face the electorate for his decision. I do not see politicians being made more responsible to the electorate for their decisions as a bad thing.

The only other way I am seeing a way to game the system with timing is if the courts delayed sentencing until after the election, thereby forcing him to agree with his replacement about the pardon. As it is they can do exactly the same thing now, but delay until after the inauguration of the new President. The only change is the critical date.

What are you mean by “passing a law to necessitate the same thing”? Are you worried that by setting a precedent restricting the President’s veto power that Congress would then be able to restrict it further as they wish?

4

[QUOTE=Mr. Moto]
The pardon power is a necessary check on both the judicial and legislative branches. Most people do not appreciate how much that is true. And for that reason it ought to be left alone.
[/QUOTE]
How many of the most recent presidential pardons have been a necessary check on the other branches? If these pardons were used to right injustices, and provide a check against the abuses of the other branches, then we wouldn’t usually wait until the last month of a 4-8 year term to grant them.

I would be in favor of checking the president’s power in these cases, give the legislature an opportunity to “veto” his pardon, perhaps using the veto override process, 2/3rds vote in both houses.

5

I generally think it is a terrible idea to make constitutional changes concerning something that is only perceived as a major problem when a very fresh event happens that one disagrees with politically.

6

[QUOTE=Cheesesteak]
I would be in favor of checking the president’s power in these cases, give the legislature an opportunity to “veto” his pardon, perhaps using the veto override process, 2/3rds vote in both houses.
[/QUOTE]
I do not agree with this. I like that the President has this independent authority, and I agree with Mr. Moto that it is an important check on the other branches of government. I see that there is a problem with how it is used though. If a President feels that it is critically important to right a wrong committed by the other branches of government, then he should do so in a timely fashion, rather than letting people sit in jail until he can give the pardon without fear of repercussion. I don’t want to take the power away, or even significantly weaken it; I just want him to take full responsibility for it.

I agree, but this is not a one shot deal of partisan disagreement. This happens with both sides (I specifically listed Clinton’s pardons because I generally like the President and think that his was a perfect example of how bad it is) and every four or eight years. In fact, this is not in reaction to a specific event, as the end of Bush’s term is still a while off, but a reminder that this abuse has happened and will likely continue to happen.

7

Then you punish the abuse, not restrict the power.

8

One problem is that the abuse is currently unpunishable. I am not even saying that we should make it punishable by a new authority, like Congress, but that we should modify its use in such a way as to subject the President to the one authority he should be most responsible to, the electorate.

9

I think the biggest problem I have with the Pardon power is the President pardoning his cabinet officers and other top level assistants. How about an amendment requiring that any such pardons be approved by both the President and the Chief Justice of the United States?

10

[QUOTE=flight]
One problem is that the abuse is currently unpunishable. I am not even saying that we should make it punishable by a new authority, like Congress, but that we should modify its use in such a way as to subject the President to the one authority he should be most responsible to, the electorate.
[/QUOTE]

Who is to say that a particular use of a pardon is abuse? If I were president, I would pardon everyone convicted of violating federal laws for using marijuana in states where use is legal (e.g. California under "medical marijuana’). I don’t support drug use and think that violators of state drug laws should be punished, but I hate the abuse of the ICC more - especially as it came about as a result of FDR’s court-packing scheme and not through honest interpretation of the Constitution.

So is this abuse?

Let’s say I’m governor of California and my friend gets a DUI. I know they don’t usually drink and never drive drunk, but at the party . . . it was hot . . . no food on the stomach . . . etc. No one got hurt and my friend is so traumatized that they swear never to have even one drink (even wine) when driving. Based on this personal knowledge and the fact that they have paid the fine, I pardon them to give them a second chance.

Is this abuse?

President again. I disagree with a law Congress passed and they override my veto. To win the pissing contest, I give a pardon to everyone that violates the law.

Is this abuse? What if I limit my pardons to only a few high profile cases for the press?

11

Exactly. And that is why any such punishment ought to be political (like the grief Carter caught for his blanket amnesty) or ought to target genuine abuses of power that accompany the pardons, like the selling of them that Governor Blanton was doing.

12

SaintCad, that is the benefit of what I am saying. We do not need a body to decide if they are abuses or not (other than strictly illegal activities as Mr. Moto describes), as that will be up to the people. The only punishment would be political backlash, and I think that is proper. I am only suggesting that the time frame be adjusted to allow for that political backlash.

Blalron, a check on the Judicial Branch is not very effective if it must be approved by the Judicial Branch.

13

No. When the lame duck presidency was severely curtailed, it was not eliminated. Remember that the inauguration used to be in early March.

The current transition period is fine, and that includes the pardons and commutations. I see no reason for a blackout on any presidential powers, and lots of reasons why such would be harmful.

14

[QUOTE=Martin Hyde]
I generally think it is a terrible idea to make constitutional changes concerning something that is only perceived as a major problem when a very fresh event happens that one disagrees with politically.
[/QUOTE]

“We shouldn’t fix the leak when it’s initially found; we should wait until half the boat is under water.”

I agree that changes to the Constitution should be reserved for situations in which a lot of thought has gone into the matter (i.e., the change isn’t likely to be reversed the following year). Concerns about this particular executive power have been around for quite some time now, though, and recent events just serve as a shining example of some of the flaws in that power.

[QUOTE=Mr. Moto]
Then you punish the abuse, not restrict the power.
[/quote]

In general, I would agree. But when a power encourages abuse, or when a power is repeatedly abused in the exact same way by different people, then it makes sense to place some restrictions on it.

[QUOTE=SaintCad]
Who is to say that a particular use of a pardon is abuse?
[/quote]

That’s precisely the point some of us are trying to make. As things currently sit, no one has the power to say whether or not a particular use of the pardon is abuse, which seems inherently flawed.

[QUOTE=Mr. Moto]
Exactly. And that is why any such punishment ought to be political (like the grief Carter caught for his blanket amnesty) or ought to target genuine abuses of power that accompany the pardons, like the selling of them that Governor Blanton was doing.
[/quote]

But, as SaintCad mentioned, “Who is to say that a particular use of a pardon is abuse?” AFAIK, there are no restrictions that explicitly state that the president can’t use the power like this. It seems wrong (and reeks of corruption), but when called to task the president can just say, “Hey, I have the power to do this, so back off.”
LilShieste

15

[QUOTE=Mr. Moto]
No. When the lame duck presidency was severely curtailed, it was not eliminated. Remember that the inauguration used to be in early March.
[/quote]
I am not sure what you are referencing with this statement.

The reason I see is that they get overused for questionable reasons without accountability to the governed. You still haven’t elucidated why they would be harmful. Earlier you mentioned you could think of several scenarios and here you mention you can think of several reasons. I would be interested if you could expand on those.

16

Oh, and another point against this being partisan: I am quite Liberal, and tend to favor Democrats over Republicans. I realize this would likely take a Constitutional Amendment and by the time that worked through, Bush, whom I loathe, would likely be replaced by a Democrat. That Democrat would be the first affected by the change in law.

17

Well, why should I explain when a more eloquent explanation is readily at hand.

Alexander Hamilton, Federalist No. 74.

I should point out that the Constitutional Convention did take up the issue of making pardons subject to the advice and consent of the Senate, and wound up rejecting that idea by an overwhelming margin.

Now, I don’t think we need to be fixing what isn’t broken. And the pardon power isn’t fundamentally broken. If certain people use it unwisely, there are political costs to that, and that usually keeps things in check.

18

[QUOTE=flight]
I am not sure what you are referencing with this statement.
[/QUOTE]

The outgoing President used to have four whole months after the election to push through all sorts of personnel appointments and take care of things like last minute pardons. This was seen as widely abusive, and the need for long periods in between the election and the new term were reduced by advances in communication and transportation, so by the 1930s the 20th amendment could be passed. Among other things, this moved the inauguration from March to January.

It did not move it any sooner - we did not become a parliamentary system where a new president takes over immediately or nearly immediately. So a period was preserved in which these pardons could still occur - and they were an issue then as well.

19

[QUOTE=Mr. Moto]
The outgoing President used to have four whole months after the election to push through all sorts of personnel appointments and take care of things like last minute pardons. This was seen as widely abusive, and the need for long periods in between the election and the new term were reduced by advances in communication and transportation, so by the 1930s the 20th amendment could be passed. Among other things, this moved the inauguration from March to January.

It did not move it any sooner - we did not become a parliamentary system where a new president takes over immediately or nearly immediately. So a period was preserved in which these pardons could still occur - and they were an issue then as well.
[/QUOTE]

I was not aware that pardons were a consideration in the change of inauguration. My comment was more dictated to what the “No” was referring to though.

I think you may be confusing me with people who think that his power should be checked by Congress or the Judiciary. I agree with you that there should be political costs, just not that there are currently, and that is why I think it is broken. I am just trying to reinstate those costs. From your own link:

A President who signs a bunch of pardons on his last day in office faces little “dread of accusations of weakness or connivance.” A President who still faces an election, or an election for a fellow party member still has that dread. I don’t want to change the motivations illustrated by Hamilton and yourself, I want to make them real.

20

Sure. But since we’ve never elected an independent, there is no reason to suppose that a president would believe that his actions would be totally shielded. They would be public, public opinion would register, and if sufficiently outraged would punish that president’s party in short order.