Ages ago (or so it seems) when Trump pardoned several of his cronies who probably committed crimes for him, it was widely agreed it would take an amendment to keep a president from doing this. And so here we are already, this bill was submitted and sent off to the judiciary committee almost immediately after the new session of congress started:
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United States limiting the pardon power of the President.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
``Article--
``(1) himself or herself;
``(2) any family member, up to a third degree relation, of
the President, or a spouse thereof;
``(3) any current or former member of the President's
administration;
``(4) any person who worked on the President's presidential
campaign as a paid employee;
``(5) any person or entity for an offense that was
motivated by a direct and significant personal or pecuniary
interest of any of the foregoing persons; or
``(6) any person or entity for an offense that was at the
direction of, or in coordination with, the President.
Any pardon issued for a corrupt purpose shall be invalid.‘’.
<all>
Can anyone explain why the bill was phrased the way it is? The language in the bill starts off straightforward then bizarrely dives straight into the enumerated list of classes of people the president would be forbidden from pardoning. It seems to be missing the part where I thought it would be saying (in appropriate legalese) “The president shall not be able to pardon these people”.
Okay, so it’s already started. I hope this bill gets traction and actually gets out of committee and submitted to the States. I know how unlikely that is. No doubt there will be wrangling in committee and if it ever goes out to the floors it will look quite different.
I believe they really need to strip out the “seven years” language. This amendment should sit out there in front of States for as long as it takes. We finally got the 27th because of a lack of a time limit and in part, state legislatures here and there over the years getting ticked off enough at Congress to ratify it. The same thing could happen with this amendment if any future presidents abuse the pardon power. We could have gotten the ERA without that pesky 7-year time limit.
Instead of establishing a detailed list of people the President can’t pardon I’d prefer to simply clarify a sitting President can’t pardon himself and just give Congress to override pardons within 30-60 days or so. Maybe add some language enshrining the current DoJ practice in law (perhaps with a provision allowing the President to bypass it with Congressional approval).
Because he pardoned his brother for a crime which gave no benefit to Bill Clinton, and for which Roger Clinton had already served his entire sentence. A specific crime, not a pre-emptive “Get out of jail free” card.
It’s tough to deal with this issue. Sometimes presidents justly pardon people. And the specified exclusions may be people who are unjustly prosecuted, likely only in a partisan political way. I think the pardon power without an amendment should require prior public notice of pardons and with an amendment that prior period would extend through the post election period. Right this moment there is no requirement to make a public announcement of pardons at all. We will have no idea who has been pardoned when Trump is gone and I expect him to cause trouble eventually by claiming after the fact that he pardoned people while he was still in office.
I’m going to assume this is them asking for more than they need. The main issue is that we want it clear that the President should not be able to pardon himself from a crime, any crime he may have been involved in, any crimes committed on his behalf, or for anything in which he may materially benefit.
We can’t have a president above the law, and we don’t want others to be able to pay to be above the law. The other explicitly stated problems are only such because they could be used to accomplish one of those two things.
And, yes, I’m all for the idea that Congress could override a pardon, or putting the power into some sort of committed to spread it out, which would also make both of the above more unlikely. The more you spread out the power, the more people have to be corrupted to use it in a corrupt way.
AIUI the president can also pardon people that haven’t been charged yet. That’s another clause I think should be removed. As it stands one of the things I hear about why Trump hasn’t been charged with certain things is because they’re waiting until after Jan 20th AND hoping he doesn’t pre-pardon himself for anything he did while in office.
Similarly, with the everyone storming the capitol the other day, people were suggesting that TPTB should have waited until after the 20th to publically ID these people specifically so they couldn’t be pardoned and I assume they won’t be charged until he’s out of office for the same reason.
It’s also my understanding that because people are so quickly being ID’d it’s why they’re trying to impeach or invoke the 25th to get him out before he goes on a pardoning spree. But how long does it take to pardon someone? A few minutes or an hour to write up some paperwork and have him sign it? It’s got to be faster than he can be removed from office.
I try to think of how such changes might have been abused if Hillary Clinton were president while the Republicans controlled the rest of the government.
They would likely have pressed trumped-up charges against her, her family, her associates, and most of the Democratic party. So while we’re thinking of limiting the pardon power, we have to remember it’s the only defense against witch hunts that are truly cynical, false, and unfair. And we do have a risk of that as long as there are Republicans.
I can think of some beneficial changes that shouldn’t have too many knock-on effects.
No pardons issued less than 120 days before certification of electoral votes in December.
No pardons issued by a defeated incumbent (defined by certification of electoral votes in December, which ought to be change, but that’s a different amendment)
No self-pardons
No pardons of crimes committed outside the presidential term.
That’s not intended to be an exhaustive list of fixes, but it should serve as an uncontroversial way to fix the worst problems without creating new ones.
@Jpey_P I agree that we need to look into limiting pardons only to those who have been convicted. However, you do need to consider one of the more famous cases of that power: when Carter pardoned the Draft dodgers.
I definitely think that was the right move. Having to wait until each person was charged–let alone convicted–would have been a nightmare.
I’m not sure it’s that big a problem once the categories I mentioned are covered. This would be a clear case of a crime committed on Trump’s behalf, at the very least.
As for the fake charges that @Smapti mentioned? The proper place for dismissal there is in the Courts. Pardons are not for false charges, but for overriding real ones.
I’m okay with your first three, but are you saying that a crime committed before a president takes office shouldn’t be pardonable? The presidential pardon is one of the checks against the power of the judiciary. In other words, it’s a method of overriding unjust sentences. I can see the point of excluding a president’s inner circle from being pardoned, as that doesn’t represent a correction to judicial error (or at least postpones the correction with the postponement being a necessary cost). But if someone was wrongly convicted of a crime last year, why shouldn’t Biden be able to pardon them after he takes office?
It’s still a check on the judiciary. Presumably there is a president in office at the time of sentencing who could issue a pardon. I don’t think the check on the judiciary needs to be strong enough that the President should be empowered to unilaterally pardon all crimes forever.
Perhaps pardons of that nature could be issued by the President, but would require ratification by a simple majority of the House. Just to loop in folks who have some electoral accountability.
Maybe even add to that, no pardons for crimes that are political in nature. So even if you can’t make a direct link that would stand up in court between, say, the president and an attempted kidnapping of a politician, the president can’t pardon them.
So much of this depends on the fact that whoever controls Congress gets to define “crimes” or “political” or “personally benefits from”. There’s a lot of wiggle room there.
I don’t disagree in principle, but step back and imagine the abuses that would be perpetrated against President Hillary Clinton facing a Republican-controlled House, Senate, and SCOTUS.
There’s a lot of news at the moment comparing the arrests occurring after the Capitol invasion with the arrests after BLM protests. I haven’t seen any examples that represent unjust arrest and convictions, but I remember news stories from last year about heavy-handed treatment. Here’s one such article:
From the article:
“Defense attorneys and civil rights activists are questioning why the Department of Justice has taken on cases to begin with. They say most belong in state court, where defendants typically get much lighter sentences. And they argue federal authorities appear to be cracking down on protesters in an effort to stymie demonstrations.”
“‘It is highly unusual, and without precedent in recent American history,’ said Ron Kuby, a longtime attorney who isn’t involved in the cases but has represented scores of clients over the years in protest-related incidents. ‘Almost all of the conduct that’s being charged is conduct that, when it occurs, is prosecuted at the state and local level.’”
“In dozens of cases, the government has pushed to keep the protesters behind bars while they await their trials amid the COVID-19 pandemic.”
So there’s a possibility that some BLM protestors were charged with federal crimes when they should have been charged with state crimes, and they would have pled guilty to minimize their time in jail to avoid Covid-19. I’m not sure such protestors should be pardoned, but I’m fairly sure they won’t be pardoned by Trump. You want to take away the ability to pardon them from Biden, or at least make it more difficult for him to do so by going through the HOR. What if this comes up in 2023 and there’s a Republican HOR?
I agree with the idea of limiting the Presidential pardon power in order to prevent abuse. However, limiting it to crimes/convictions that occurred in the President’s term, or adding hurdles for crimes/convictions that occurred before the President’s term strikes me as precarious limitation.
The limitations need to be placed on the president, he should not be able to pardon himself, and must disclose pardons. There needs to be a formal binding process defined, which is right now nothing. But it is a dangerous thing to restrict the president from pardoning classes of people or allowing the legislature or courts to overturn pardons. Obviously the courts should have the power to invalidate a pardon based on process or corruption but not the worthiness of the pardonee themselves.
In a previous thread I wanted to see post-election pardons for an outgoing president disallowed, but even in that short time period it removes the possibility of saving someone from execution for a federal crime in that time period. There must always be this safety valve to prevent the most serious miscarriages of justice.
I agree with the first three. But I strongly disagree with the fourth.
If you limit presidential pardons to crimes which occurred during the current President’s term, you eliminate the ability to give redress to past injustices. You also create the opportunity for an incumbent President to arrest a bunch of people with impunity, knowing that the convictions cannot be reversed after he leaves office.
