The Protecting Our Democracy Act and presidential pardons

From here:

Is that (the part about limiting presidential pardons) constitutional? Seems like it’s an Article II issue that can’t really be surmounted without an amendment.

Ugh. Can’t legislators introduce legislation that fits on one or two pages? Title I of the bill (called the “Abuse of the Pardon Power Prevention Act”) deals with pardons, let’s take a look…

ETA: Sec 102: Attorney General has to notify Congress after the President pardons people. No problem there.

Sec 103: Bribery statute (18 USC 201) now applies to the President giving pardons. Will have to look at this in more detail…

Sec 104: The president can’t pardon himself. I don’t think Congress has the power to decide that but also I don’t think the section will ever be challenged in court, and if it did, it would be severed from the rest of the law.

~Max

Could constitutional objections be overcome by a lesser restriction on presidential pardons?

My proposal would involve mandating that such pardons could be announced only up to 60 days before a President leaves office, allowing a comment period before they take effect. That wouldn’t eliminate abuses, but maybe enough hell could be raised to allow for reconsidering the worst ones.

As it stands now, Presidents can sneak out the door knowing that any pardon backlash including unfavorable media coverage is likely to be limited by their absence from the White House.

How about no pardons between 30 days before election day and inauguration day, win or lose. I’d support that constitutional amendment.

Given that the constitution gives a restriction (“except in Cases of Impeachment”), originalists will likely interpret that as the only restriction the founders wanted.

18 U.S.C. § 201 with proposed additions in boldface (click to show/hide)
  • (a) For the purpose of this section—
    • (1)the term “public official” means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person, including the President and the Vice President of the United States, acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror;
    • (2)the term “person who has been selected to be a public official” means any person who has been nominated or appointed to be a public official, or has been officially informed that such person will be so nominated or appointed; and
    • (3)the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit, including any pardon, commutation, or reprieve, or an offer of any such pardon, commutation, or reprieve.
  • (b) Whoever—
    • (1)directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—
      • (A)to influence any official act; or
      • (B)to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
      • (C)to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person;
    • (2)being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
      • (A)being influenced in the performance of any official act;
      • (B)being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or
      • (C)being induced to do or omit to do any act in violation of the official duty of such official or person;
    • (3)directly or indirectly, corruptly gives, offers, or promises anything of value (including, for purposes of this paragraph, any pardon, commutation, or reprieve, or an offer of any such pardon, commutation, or reprieve) to any person, or offers or promises such person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom;
    • (4)directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity in return for being influenced in testimony under oath or affirmation as a witness upon any such trial, hearing, or other proceeding, or in return for absenting himself therefrom;
    shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
  • (c) Whoever—
    • (1)otherwise than as provided by law for the proper discharge of official duty—
      • (A)directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official; or
      • (B)being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;
    • (2)directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or for or because of such person’s absence therefrom;
    • (3)directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon any such trial, hearing, or other proceeding, or for or because of such person’s absence therefrom;
    shall be fined under this title or imprisoned for not more than two years, or both.
  • (d) Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c) shall not be construed to prohibit the payment or receipt of witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance at any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable fee for time spent in the preparation of such opinion, and in appearing and testifying.
  • (e) The offenses and penalties prescribed in this section are separate from and in addition to those prescribed in sections 1503, 1504, and 1505 of this title.

~Max

The Supreme Court’s unanimous opinion in McDonnell v. United States, 579 US _ (2016) could be highly relevant here, I think, since it involves that very same bribery statute and specifically the statutory definition of an “official act”, which is changed by the proposed bill.

I haven’t read the whole opinion yet but will read it now.

~Max

Can I ask, what’s the point of limiting the pardon power?
If it is an anti-Trump statement … well a little to late for that. If it is a “We can’t let Presidents abuse their pardon power” … well every President has done that. How about preventing Presidents from pardoning family members (Clinton) or blanket pardons (Buchanan re: Mormons; Carter re: draft dodgers) or pardon rich donators (Clinton)? I know we did a thread on this when Trump pardoned Arpaio and it is pretty well established that abuse of the pardon power has occurred throughout history and across party lines. So why curb it now?

Thanks for all the legwork, Max.

It probably boils down to people are mad and political hay can be made, but you could ask the same question for pretty much any new legislation.

My understanding of this case is that the proposal to make “an offer of any […] pardon” an “official act” does not extend to merely setting up a meeting or attending an event. So if some individual made a campaign contribution and later the President agreed to meet with him about a possible pardon, merely setting up that meeting would not qualify as “an official act” for the purposes of the federal bribery statute.


More to the point, the proposed changes to section 201 don’t seem to have much substance.

  • The existing law already defines a “public official” as “an […] person acting for or on behalf of the United States”, which includes the President and the Vice President.
  • The existing law already defines an “official act” as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending […] before any public official, in such official’s official capacity”. The formal administrative decisions and the decision to offer or actually pardon the individual are already covered by this law. Explicitly mentioning pardons or offers to pardon adds nothing of substance.

The change to paragraph (b)(3) has some superficial substance because it explicitly defines a pardon and an offer to pardon as something of value (the quo in quid pro quo). For reasons laid out in McDonnell the “offer of any […] pardon” would have to be the formal offer as an official act, not merely a meeting to discuss the pardon.

But I was already of the opinion that a pardon is something of value, especially if it is actually bought with money as contemplated in your typical bribery scenario. Here’s a letter from Professor Pfiffner of Jamestown University where he says a pardon is “clearly something of value”, as if it is obvious, because it is.

So in effect the changes to the federal bribery statute have no substance. I don’t think section 103 of the Abuse of the Pardon Power Prevention Act runs afoul of the Constitution, because it doesn’t substantively change the law.

~Max

Why not curb it? Just because it’s happened “across party lines” doesn’t mean it’s not wrong.

Your logic for not changing the law is just showing us multiple examples of how it’s was bad and was being abused.

I’m more concerned about underuse of the pardon power:

From 1945 to 1953 [Truman] issued 2,044 pardons, commutations and fine reductions. Presidential acts of clemency plummeted after Reagan, who vowed to get tough on criminals, took office in 1981.

If we could have a constitutional amendment, I would establish a non-partisan pardon board whose recommendations could be added to by the President, but not reversed.

The value to society of punishment is greatly overrated. This is one issue where I am an old fashioned leftist.

I believe such a restriction on the power of the president would be unconstitutional. The power of the executive to grant pardons for crimes against the United States is right there in the Constitution it’s not a power created by congress nor is it their place to dictate how the executive branch behaves. So long as the president is in office, he or she has the full power of the office.