I don’t claim to be a professional con-law scholar but it seems to me that the exception was intended to prevent the president from interfering with congress’ ability to remove a president or other executive or judicial official from high office. That’s distinct from whether someone is guilty, acquitted, or pardoned under our system of jurisprudence.
The gist of that article is that Congress can enact legislation requiring that pardons be publicly disclosed, so as to prevent “secret” pardons. From the article (bolding mine):
Informational requirements would constrain a number of such abuses, ranging from a president secretly issuing himself or herself a blanket pardon at the end (or beginning!) of a term of office, to a president’s use of advance secret pardons as a form of “carte blanche,” get-out-of-jail-free card allowing favored retainers to violate the law at the president’s direction without fear of subsequent prosecution or consequence (even by a successor administration). A president could still issue such nefarious pardons, but they would no longer be secret—which, in terms of public and political backlash, would substantially limit their (nefarious) utility. The relevant retainers might be less convinced that such pardons would be honored, and more concerned about extralegal political consequences, since such pardons would be strong evidence of skullduggery even if they prevented prosecution.
None of Trump’s pardons (that we know of so far) have been done in secret, and Trump doesn’t give a rat’s ass about public and political backlash. Seems to me that the article just reinforces the notion that Congress can’t meaningfully regulate presidential pardons - the only weapon they have is shame. And Trump is immune to shame.
I proposed a public notice and the ability of congress to override a pardon. I didn’t say it was simple to for the latter and it would probably take an amendment.
However, I do not see any impediment at all to a public notice requirement that does not restrict the president’s ability to issue pardons.
If Congress did pass such a law and the President gave them the middle finger, what’s the consequence? The pardon would still go through. I suppose Congress could use it as the basis for an impeachment, but good luck with that.
What’s most troubling are the Blackwater pardons: that’s just inexplicably awful. And this will establish a new norm, which will not be undone. A future president could pardon militia members or extremists who commit murder or acts of violence on no other basis than the fact that they are in political alignment with a right wing president. It’s an example of a power that really cannot be checked, and it’s a design flaw in the Constitution.
I think that last sentence is the most important one: we have to begin to see that our Constitution, which we have treated with great reverence for generations, is in fact old, and it is not equipped to stop an authoritarian regime from wresting democratic power away from citizens.
You know, the big issue here isn’t the abuse of the pardon power. Some assholes not having to pay their debt to society is infuriating, but it’s not an existential threat to the fabric of society. MOST assholes get away with it. This is just shifting a few more into that pile.
The real issue is that this corruption will go unsanctioned, it will be normalized. Republicans will rationalize and support this, instead of being appalled… We don’t have a pardon problem. There will be no reckoning at the ballots in 2022. That’s the problem, and tweaking the system 1) won’t help and 2) won’t happen. You can’t tweak the system if half the people involved prefer it this way. And if that weren’t true, we wouldn’t need to tweak it.
Here’s what you actually proposed:
That 90 day delay between public announcement and signing seems like a pretty significant restriction on the President’s ability to issue pardons. Even more so if, as you seem to suggest, the “public comment” period is long enough that any pardons that take effect before Inauguration Day have to be announced before the general election. That’s a pretty clear removal of the President’s power to issue pardons during the period between Election Day and Inauguration Day. I get the reasoning, but the President is still the President until Inauguration Day. I can’t see this getting past a court challenge.
If you just want a requirement that all pardons must be publicly announced as they are issued, I’m onboard with that but…I honestly don’t even know how a “secret” pardon would work. I mean, if someone is released from prison, the pardon can’t really be secret. I guess a preemptive pardon ala Ford and Nixon or Carter and the draft evaders could be kept secret, and that does seem like it would be an abusive use. But, I also think preemptive pardons in general are constitutionally questionable at best, and prone to abuse.
The Blackwater pardons are, I agree, just awful. I’m not sure I agree they’re the most troubling. Pardoning everyone involved in his campaign is a horrific precedent. At that point, the system seems to be actively encouraging election fraud and other crimes.
To be clear, it is congress that has granted the president that much power. Tariffs are up to congress, but they can and have granted the power, under certain circumstances, to impose them. An example is the aluminum tariff against Canada. He announced that it was a security risk to be importing so much aluminum from Canada. WTF? A reasonable compromise would be to allow the president to impose tariffs (or announce other things) in an emergency but require that congress vote to approve them within 30 days. But then what happens if congress is not in session and cannot get back within 30 days because reasons?
Consider executive orders. In principle, they are orders to the executive departments directing them how to carry out the laws. Suppose they tell them to ignore the law in certain cases? Hard question. You don’t want the police to arrest everyone who drops a gum wrapper on the sidewalk, do you? This kind of discretion just has to be permitted. In various jurisdictions today, police have been ordered to ignore possession of small amounts of pot. Is that reasonable discretion? I imagine nearly all members of this board agree it is. What about DACA, then? While I heartily agree with the result, I am just a bit troubled by the fact of its being done by executive fiat. Yet is, in principle, not different from the gum wrapper on the sidewalk.
While I think, if anything, DACA doesn’t go far enough, I’m more than a bit troubled by it having been done by executive fiat, and I personally think it’s very different from your other examples, and was a clearly unconstitutional overreach, but I don’t want to derail this thread with an extensive discussion of it.
But in general, yes, Congress has delegated enormous power to the executive branch, and to the Presidency in particular. The War Powers Act, for example, is ostensibly a limit on executive action, but it actually officially delegates to the President barely-limited authority to de facto declare war.
But, on the other hand, the Constitution also gives the President, in some areas, enormous and largely unchecked authority, such as the “reprieves and pardon” power. The only real check on an abuse of it is impeachment, and we’ve seen the limits to that…
Sorry for the hijack but is this because the constitution was written by enlightenment era thinkers who just couldn’t predict how perversely their successors could think?
I think that two separate issue are being mixed up - there is DACA which applied to people brought to the US as children who could apply for renewable two year periods during which deportation was deferred. That was really nothing like the gum wrappers.
There were also policies during the Obama administration regarding priority enforcement - this was like the gum wrapper. Certain categories of people were given priority for enforcement, so that someone who had been in the US unlawfully since 2010 who was not convicted of any crimes would most likely not have been deported - not because there was a policy against it, but rather because resources were to be devoted to removing terrorists, threats to national security, people who were apprehended at the border, convicted felons and so on before getting to the people who weren’t any of those things. But they were only unlikely to be deported - if there were resources left after the higher priority cases were dealt with , or if a particular case didn’t require the use of resources there was no policy preventing it. Much like a police department that expends all its resources on homicide investigations isn’t going to do much ( or any ) investigation in the case of a stolen car - but that doesn’t mean they won’t arrest the thief if there is a video of him stealing the car
You’re right about that. The pardons issued after the election or other time period could become valid automatically on inauguration day but that would remove the whole point of having them announced in advance.
At least the public announcement at the time a pardon is issued must be done. What are we to do if in the future Trump produces some handwritten pardons with his signature and dates prior to inauguration day? There has to be some reasonable process defined. You don’t think Trump wouldn’t try something like that do you?
I agree, a law requiring pardons to be publicly announced as they are issued but does not otherwise restrict the President’s authority is probably constitutional (it’s a also a good policy, but the two aren’t the same). It just hasn’t been an issue until now, and as a brute political reality, a measure like that is very unlikely to even be seriously considered until an abuse happens, at which point it will be too late (at least for that specific incident)…
I actually think a plausible argument could be made that a pardon or reprieve must be publicly announced to be valid as it is, even without a law explicitly requiring disclosure, but, again, IANAL.
Blackwater is involved in his campaign - involved in his administration - and violence is their business – very, very disturbing.
As I posted on another thread, a future authoritarian won’t take four years to start weeding out the disloyal in the military; that will be their priority as soon as the outgoing president’s Marine 1 copter flies away.
This isn’t exactly true. They couldn’t get a pardon from the compromised president, but they’re still eligible for a pardon from other presidents. I would think the instances where a criminal can’t get a just pardon from a compromised president would be vanishingly rare compared to the number of times unjust pardons are handed out in such situations.
I think the real problem is that the 1787-91 Constitution itself reflects a deep skepticism and some trepidation about democracy among the framers, who certainly didn’t hold the same regard for democracy that we do today. They were aristocratic and believed that democracy should be limited and left in the hands of an aristocratic elite class. They created the presidency because they believed that the only way a government could remain free and stable was to divide power and let them compete with each other, the result of which would be that no single organ would be able to dominate the government.
The last 100 or so years have demonstrated that people can be trusted self-governance. Moreover, self-governance is the best protection against tyranny – but you need to have institutions that support successful self-governance. We’ve also learned that dividing power doesn’t necessarily provide a suitable check on power. Nazi Germany is an example of how a presidential democracy can fail through obstructionism, and if I didn’t know any better, I’d say we’re following a similar path.
Oh, yeah, it’s definitely disturbing. I think we’re arguing about whether it’s worse to be shot or stabbed.
Well, the “conflict of interest” class of criminal defendants would be cut off from the ultimate appeal authority for up to 8 years - and justice delayed is justice denied. And better 10 guilty men go free than one innocent man go to prison, and all that.
But, again, this kind of limitation would require a constitutional amendment, and at that point, I think we’d be better off just taking this kind of decision out of the President’s hands entirely, and giving it to an independent review board.
I think it’s worth (everybody) remembering that Blackwater was founded and headed by Erik Prince, the former SEAL, likely sociopath, likely Christian Dominionist, an definite brother of SoE, Betsy DeVos.
Coincidence ? Oh, I rather doubt it. These were Prince’s guys, so they probably still are in one sense or another.
Threadjack over 