It was presumably designed by people who envisioned a wise and good president pardoning people who had done nothing morally wrong, but fell afoul of some technicality. The potential for abuse and subverting the principle that nobody is above the law is obvious.
I think the primary criticism of the U.S. constitution was always that it placed an inordinate amount of power with the president, and this is just one aspect of that.
TriPolar’s quote from the Constitution sums up the president’s power. Also worth noting is Supreme Court rulings relating to what is being discussed here.
1866 Ex parte Garland, a case before the supreme court regarding presidential pardons,
“1. The president has full power to pardon anyone of all federal crimes either before, during, or after prosecution.”
From this Supreme Court and other court decisions the legal consensus is,
“The president cannot pardon someone for future or ongoing crimes.”
Could be the limitation on ongoing crimes might be Trump’s undoing on some federal charges. And as mentioned above, Trump has no protection from non-federal crimes and it’s known Trump has be under close scrutiny for a number of activities in the State of New York. But maybe the New York governor will give Trump a pardon?
And presidential pardons won’t affect civil cases if anyone wants to sue Trump for damages. One might wonder if Trump will be slammed with civil cases after he leaves office and no longer has presidential powers to influence people and things that make Trump uncomfortable?
Sure, but the question is whether the president has to identify the crimes, or can he/she just say “any and all crimes.”
Sorry, I got too political there.
If Pence must identify the crimes of Trump that could be tricky and embarrassing for someone.
Either Pence might want to claim Trump has committed no crimes so what is there to pardon?
Or, to really protect Trump some people might think the list identifying the crimes of Trump might be an embarrassing long, long list? If you have to ID every crime…
Hope so. Don’t know what would qualify as an ongoing crime, but Trump has no idea how to create a pardon, there will need to be plenty of people involved who might be able to produce evidence that any pardons were brokered in the first place and then part of an on-going crime.
The Pence theory is also complicated by the other people counting on pardons. If Trump doesn’t produce those first any one of those criminals could turn on him and Pence, and he’ll need a lot of pardons to avoid that. If he relies on Pence to do it then no one has any idea what that rodent will do, I doubt he can pardon enough people to get out of this mess.
The example of Garland would suggest that you can say “any and all crimes” – Garland’s pardon was for “all offences by him committed, arising from participation, direct or implied, in the said Rebellion”. This obviously limited by connection to the Rebellion (as Nixon’s was limited to his term of office), but I don’t think it’s suggested that this was necessary or limiting of the pardon power.
And, you could imagine that a President might want to broadly pardon–there are innumerable federal offenses (I commend to all the “Crime a Day” twitter) and you might not want a clever future prosecutor charging your pardonee under some creative theory stemming from some obscure regulation.
This is not at all politically difficult as far as Trump supporters go. Obviously he’s just pardoning Trump to protect him from the unjust persecution by the deep state that will occur once he’s left office. He doesn’t have to identify crimes. If he did, someone could just copy/paste the entire federal code into his pardon and he’ll say “we don’t know what crazy things the deep state is going to make up”.
You’re right. But remember that the model they had was the king and he had near absolute power then. They were trying to make the president substantially weaker than the king and succeeded. They just didn’t make him weak enough. And, to be sure, congress has ceded a lot of power to the president in recent years by its inability to act. For example, DACA, which I heartily approve of, nevertheless represents enormous overreach by the president. But congress refused to act.
Ironically, the prime minister in a parliamentary system, actually has dictatorial powers when in a majority. When Trudeau (père) wanted to institute medicare in Canada, he simply proposed it, the caucus agreed and it was passed.
I wouldn’t say a PM is a dictator. Their majority can always rebel if they decide they dislike the PM’s agenda. But it’s certainly true that without a separate executive, a parliament is essentially free to do whatever they please.
In the US system, whenever issues of the Imperial Presidency are concerned, people tend to forget that the vast majority of the president’s expanded powers come from statutory delegations, rather than the Constitution. (Though the pardon power is strictly constitutional.) I think a large majority of the problems with a too-powerful presidency can be resolved by amending a shitload of legislation to delete delegation clauses and separate various rulemaking authorities from direct executive control.
But that would require a Congress with a large majority in favor of at least partially neutering the White House.
I wouldn’t say a PM is a dictator. Their majority can always rebel if they decide they dislike the PM’s agenda.
Isn’t that what happened in the end with Margaret Thatcher? I vaguely recall she pushed too far (poll tax?) and her party told her it was time to go… Similar things happened with the Brexit debate.
ASIDE:
There’s an interesting math - I like Britain’s system better than Canada’s. They have over 600 MPs, we have 300. A majority would be about 350 in Britain, 180 or so in Canada. Subtract the 50 or so cabinet ministers, committee chairs, another 50 “secretary to the…” etc. and there’s maybe 50 who are biding their time to be noticed and move up; leaving maybe 20 or 30 at most unruly backbenchers who if they are seriously displeased can derail the government. In Britain, the unruly majority government backbenchers who know they will never make minister number 150 or more - a lot harder to reign in. As opposed to minority governments like Israel, where small parties play that role and make inordinate demands to support the coalition.
By contrast, the USA has no easy mechanism to remove the executive, other than impeachment; theoretically a very drastic step, but since the late 90’s seems to be becoming a standard political tool.
The executive has enormous powers, including that fixed term and pardon powers, that a parliament does not have.
I guess the question is - how participative has Pence been in some of the questionable actions of Trump? Hypothetically, if Pence was a partner to Trump’s Ukraine call, could he pardon Trump?
Also, as others point out, the pardons only apply to federal crimes. Anything state is not covered.
Another question - how liable is trump for lawsuits? I see that the DOJ is trying to take over his rape defamation suit, on the theory that acts committed in his pursuit of his office are defended by the government (I.e. calling the alleged victim a liar was part of his job where he answers reporters’ questions). That same process immunizes federal officers from lawsuits under sovereign immunity. But does sovereign immunity apply if the law is broken?
They could take it a step further. After Pence pardons Trump he could resign. Pelosi would have to step down from congress to serve as POTUS for three weeks. Defang their nemesis with a mostly meaningless promotion.
No, she wouldn’t have to unless she wanted to. If the Republicans are pulling shenanigans and the Democrats see this coming, she could preemptively resign as speaker and let the Democrats pick a new speaker to be ready to take the three week presidency or a speaker who is ineligible for the presidency (if they picked AOC, for example, she’s too young so would not become acting president), and get voted back in as the real speaker at the next new Congress or when the temporary speaker takes over. Or she could resign her position (so that there is no speaker of the house) after Pence announced his own resignation without appointing a VP, which would make Chuck Grassley (President Pro Tempore of the Senate) the 3 week president - but he might also choose to resign his position rather than his senate seat, which would throw things to the cabinet.
There’s not an explicit provision for ‘resign as Speaker in lieu of taking the office during obvious shenanigans’, but it’s clearly possible to resign as Speaker, and there’s no way that the Supreme Court would rule against it if someone attempted to use and they even chose to hear the case within the 3 weeks before it becomes moot (which is extremely unlikely).
A Presidential pardon can only protect someone from Federal crimes. There are various things Trump is alleged to have done, including sexual assault, that can be charged at a State level. A presidential pardon would not protect him against these.
Wouldn’t Trump ‘needing’ such a pardon by Pence (or whomever) be a tacit admission of guilt/knowledge that crimes have, in fact, been committed?
When Ford pardoned Nixon - there was no doubt that crimes had been committed.
Isn’t the point, though, that Ford pardoned Nixon for, y’know, everything? It was a pardon against federal murder charges, against federal kidnapping charges, against federal perjury charges, against federal counterfeiting charges…
It’s not about the Pardon itself (or what its for) - Its that it would be an admission by the Trump admin (and Trump himself) that a pardon was needed.
That would sink what little legitimacy he thinks his administration has.
When Hillary was running in 2016 - I remember there being CT posts related that ‘Obama will pardon HRC!’ and this isn’t much different. You don’t pardon unless you know there is something to pardon for.
Not in the eyes of the RWs.
Assuming Trump is not re-elected, in their eyes the country has just been handed over to something not far from Hugo Chavez’ Bolivarian Revolution in Venezuela. Trump (and all his henchmen) need to be pardoned before they lose power precisely so the massively false and totally politically motivated sham / show trials the usurpers will begin come late January are nipped in the bud.
That’s their story and they’re sticking to it.
Indeed. The preemptive general pardon and even the self-pardon is, to them, a no-brainer. From their POV it’s “why has every single President until now been so stupid as to not do this?”
Not about the RWs either - again - it would be Trump admitting he ‘needs’ a pardon.