[Perhaps this should be in P&E, and I’m sure it’ll be moved if so.]
The Trump administration exposed a lot of potential problems that could be caused by presidents that don’t follow tradition. This is one of them.
So I’m opening the floor to suggestions as to how to explicitly restrict the Presidential pardon. It will have to be done via ammendment, but I think if it’s well-written, it could get support from both parties.
First, and I don’t think there will be much debate on this, is to prohibit self-pardons. But I think this should be extended to also prohibit pardons of immediate family members and perhaps some immediate subordinates of the President. Exactly which subordinates would be a matter of debate, of course.
Second, prohibit preemptive pardons. That is, restrict the pardon to only people who’ve actually been convicted of a crime. People who’ve just been indicted or on trial or even are just under investigation will have to wait until the judge or jury foreman says “Guilty”.
Third, all pardons must be registered and published at the time of issue. No secret pardons that someone can pull out of their back pocket as a surprise to a prosecutor. This restriction would probably be unnecessary if the second suggestion above is adopted, but it may not be.
OK, those are my thoughts. Anyone have any other suggestions or see problems with mine?
We need some authority to correct miscarriages of justice. Such as people being given too long a sentence for the actual crime they committed. For example, Obama had a program set up for review of applications by federal prisoners. Through this I understand he gave out more pardons than any other President.
But perhaps you’re right in that the President should not be the one to do this. Perhaps a commission of retired judges could be given the job. But still I think my second proposal in the OP should be part of that.
I don’t think finding ways of limiting it or whatever are bad, but they’re inadequate. Remember, Trump was impeached twice but convicted “nonce.” That separation of powers thing was designed to save the day but it didn’t. Some of the very people who could have been killed during the attempted coup won’t break ranks with the party. Pardons leaves an escape route, but when the system is already rigged they aren’t necessary.
A lot of people were wondering if Trump would pardon himself…but also remember the theory that floated around that he’d avoid that by resigning, making Pence POTUS, and then Pence would pardon him? But he never was convicted so we’ll never know.
And if someone now manages to bring charges that his lawyers can’t make go away, will we find he wrote himself one before vacating the White House?
And there’s a precedent—Ford pardoning Nixon. Some dopers (especially outside the US) may not know that Nixon’s Vice President, Spiro Agnew, got the boot and Nixon chose a new one, Gerald Ford. When Nixon was on the hot seat for Watergate, Ford ended up getting promoted to president. Note that he was not elected…and he pardonedthe very man who gave him his job.
In a televised broadcast to the nation, Ford, who had succeeded to the presidency upon Nixon’s resignation, explained that he felt the pardon was in the best interests of the country and that the Nixon family’s situation was “a tragedy in which we all have played a part. It could go on and on and on, or someone must write the end to it. I have concluded that only I can do that, and if I can, I must.”[3]
I think limiting the president from pardoning themself is a good idea, but no other restrictions on who they can pardon. No secret pardons is another good idea. I think the best way to limit pardons is time-based: No pardons in the period from 30-60 days before election day through inauguration day, win or lose.
A commission of former judges deciding who to pardon would fix that issue. Well, we’d have to make sure they can’t pardon each other, I suppose. But I still think a thread on reforming the impeachment process would be a good thing.
Or even worse, wrote a backdated one at some later time. That kind of thing was what I was trying to avoid by suggestion three. However, the commission would also avoid this problem.
I don’t like the process of outgoing presidents who sign off a bunch of pardons just as they are about to leave office. There was one notable case when Bill Clinton pardoned his brother for drug charges from the 1980s. That’s a particularly touchy case but even if you don’t want to limit the scope of what can be considered for a presidential pardon the notion of doing it all at the last minute doesn’t sit right to me. You’re getting into the territory where the ethics gets blurred because if it were that important and had to be done, these presidents had a whole term or two to do so.
There was a report last year I believe that outlined Rep. Matt Gaetz asked about a pre-emptive pardon from Donald Trump before he left office. This followed the news that Gaetz is under federal investigation.
At the very least, there’d be more time for media coverage and excoriation of a bad pardon decision. At best, a judicial commission or Congress would be given opportunity to overturn the worst pardons.
I’m not an expert on this subject but isn’t this already the policy? I thought all presidential pardons had to be filed as public documents. In some cases, they may not receive a lot of public attention but they’re not secret.
The only limitations that the Supreme Court has recognized on the President’s pardon power is that it: does not apply to impeachments (per the Constitution); can only be used for federal offenses; cannot be used to pardon future or ongoing crimes; the recipient must accept the pardon. Any other “requirements” such as review by the Office of the Pardon Attorney are policy and can (and have been) ignored by Presidents.
So there’s no requirement that a pardon be publicly disclosed. However, to be of any use to the recipient, it would need to be introduced in court proceedings to either stop or overturn a prosecution. And the recipient would need to be able to prove to the court that the pardon had been issued by the President while he or she was in office.
How about a requirement of specificity? The already-mentioned pardon by Ford of Nixon was for “any crimes he may have committed”, without specifying any of them. And IIRC, Carter issued a pardon to “all draft dodgers”, without naming any of them. Both of those seem to me to be abuses of what a pardon is intended for (even though, in the case of the draft one, I agree with the sentiment).
I’ve always been a fan of sortition as a way of picking people to give direction to our government.
I suppose my proposal would be for a randomly selected sample of people to be empaneled to review presidential pardons, then vote on it. I’d go with a simple majority up or down vote. Probably best to have an odd number, so that there are no ties.
Ideally, you’d have a separate panel for each pardon, but I don’t know how practical that would be.
I believe your starting point is a speculative post I made in the other thread.
Please note that I never said his self-pardon would ultimately be successful. Only that it would create delay in the process of his indictments and/or convictions, which has been a useful tool to Trump throughout his life.
Sure. But it the secret pardon is interesting . Since we know trump did not openly pardon himself. Thereby, any such self-pardon would have to be, a secret pardon. Two reasons to ignore it.
Not trying to hijack—the OP mentions:
The Supreme Court can rule no secret pardons, without touching on self- pardons.