Reforming Presidential Pardoning Power

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Source: constitutioncenter.org

By Ali Gokcek

Introduction

As President Trump’s term is nearing its end, he has been issuing very questionable pardons. There is no question that the Constitution gives the President a vast pardoning power. However, some of President Trump’s pardons have raised questions on how to prevent abuse of this executive power. This article analyzes the constitutional background of the pardoning power, legal precedents, President Trump’s questionable pardons, and what steps should be taken to prevent future abuse. It identifies four possible courses of action and makes a recommendation to investigate Trump’s pardons and seek constitutional reform.  

Pardoning Law

In Article II, Section 2, Clause 1 the United States Constitution states, “The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This section of the Constitution gives the president almost unlimited power to pardon nearly any federal crimes and/or violations. 

Why Founding Fathers Created the Pardoning Power

The president was given this power to “temper justice with mercy.” Hamilton reasoned in The Federalist, No. 74, that an absence of this pardoning power would cause there to be a justice system that was “too sanguinary and cruel.”  Similarly, in the court case United States v. Wilson, Justice John Marshall characterized the pardon as “an act of grace.” The Founding Fathers intended this power to be used to promote and bring about peace to the nation: “In seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth” (The Federalist No. 74). There were some politicians who were against this right, however. George Mason believed that this right could lead to a monarchy because he believed a president “may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be expected.” Politicians like James Madison believed that there was a remedy for this: impeachment. At the Virginia Convention, Madison said “There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.” He reasoned that if there were to be any crazy president, checks and balances would come into play and stop such president from taking over as a monarch.   

Precedent of the Pardoning Power

In a 1974 decision of the U.S. District Court for the District of Columbia, Hoffa v. Saxbe, the court said the president has “unfettered executive discretion” to issue pardons. In the Ex Parte Garland case (1867), Justice Stephen Johnson Field said, “Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions,” meaning Congress has no way of stopping a presidential pardon-no matter how controversial it is. The power is given to the executive branch only. In the U.S. v. Klein court case (1872) it was again determined that Congress cannot overturn a presidential pardon. Similarly, the Supreme Court’s power to review was limited to constitutional violations, not political dissents.

Limits on Pardoning

 The President is limited in his power to pardon in a few different cases, however. The President can only pardon federal crimes. He/She can not self-pardon or pardon any associates that would protect himself/herself from the consequences of the law, and therefore would put himself/herself above the law. Last but not least, the President can not issue pardons that function as bribes or obstruct justice. 

Federal vs. State Crimes

Firstly, the President can only pardon federal crimes, or as the Constitution states, “pardons for offences against the United States”. This does not include violations against state laws, rather only Federal Crimes. Federal Crimes include but are not limited to Federal tax fraud, treason, counterfeiting, and drug trafficking. Many state crimes such as murder, sexual assault, and theft are not pardonable as long as they do not cross state lines. For state crimes, only the governor for that state has the right to pardon. 

Not Above The Law

A president cannot pardon himself/herself or any of their associates that would obstruct an investigation into their interests or themselves as this could be considered as a self-pardon. Although there has been some controversy on whether a self-pardon is legal or not (with the pro-legal side arguing that there is no precedent to argue otherwise), it has largely been accepted that self pardoning is not legal due to the Take Care Clause and the Oath Clause.  The Take Care Clause requires the President to “take Care that the Laws be faithfully executed,”  and therefore bars the President from betraying the public good to exempt himself from the law. The Oath Clause contains a similar command to “faithfully execute the office of President of the United States,” to the best of the President’s ability to, “preserve, protect and defend the Constitution of the United States.” If the President were to pardon themselves, they would have broken their oath to the people and would, therefore, be impeachable. 

Can’t Trade Pardon for Bribe

A president can not issue a pardon in exchange for anything of value for themselves or for their families. In Title 18 Section 201, the U.S. code states that if anyone “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” would result in jail time and/or fine. So if a president, a public official, did pardon someone in exchange for anything with value, it could result in impeachment, jail, and/or fine.  

Crime Needs to Have Been Committed

In the Ex Parte Garland court case, it was decided that the crime must have already been committed – ”known to the law”, and future contingencies for crimes are off limits. Even if someone has not been charged with the crime, they can still be pardoned. These are known as preemptive pardons. As the most famous presidential pardon would have it, it was a preemptive pardon. After Richard Nixon stepped down from office to avoid impeachment, President Gerald Ford pardoned Nixon “for all offenses against the United States which…Nixon…has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” This pardon gave Nixon immunity for all federal charges associated with the Watergate scandal. 

Methodology

Since this is a paper about the Constitution, I went through legal documents and sections about the pardoning law in the constitution. In order to understand how and why the pardoning law came to existence, I researched what the Founding Fathers discussed during their conventions and what their arguments were. The paper looks into whether there were precedent-setting cases, through Supreme Court cases regarding presidential pardons. The paper analyzes the limits of the presidential pardon power, to understand what limits were put on this presidential power. It looks through the pardons that President Trump issued and points potential abuses of the pardoning power. The paper then identified and analyzed possible courses of action.  

Trump’s Questionable Pardons

The people that Trump has pardoned have extremely diverse criminal backgrounds ranging from tax evasion to lying under oath. Michael T. Flynn, a former national security advisor, pleaded guilty twice for lying to the F.B.I about his conversations with a Russian diplomat. He was the only White House official to be convicted from the Trump-Russia investigation. Since pardoning Flynn could help Trump, this could be a chargeable case against Trump. Another pardon issued by Trump was for George Papadopoulos, a foreign policy advisor to Trump, who pleaded guilty to lying to officials in an investigation. After getting pardoned, Papadopoulos published a book about a “‘deep state’ plot to ‘bring down President Trump.’” There could be a connection between the publication of this book and Trump’s pardon. Next is lawyer Alex an der Zwaan, who was pardoned for his crimes for lying to investigators “who were investigating Russian interference in the 2016 presidential election.” Again this could be chargeable against Trump for trying to protect himself by pardoning someone involved in an investigation he was involved in. Another person of significance that Trump pardoned was Nicholas Slatton along with others involved in the same crime as him. They were sentenced for life for the killing of 17 innocent Iraqi citizens. This pardon is much less a violation of Trump’s pardoning power, rather an ethical dilemma. An interesting pardon was issued for Conrad M. Back, a friend of Trump. He was convicted for fraud and obstruction of justice. The interesting part, however, is that he wrote a book named, “Donald J. Trump: A President Like No Other.” An extremely pro-Trump book that could cause suspicion about whether his pardon involved bribery. Many of these pardons could be investigated and lead to impeachment. Although on the outside these pardons seem legal, they expose how the pardoning power could be abused to favor the president personally in many different ways.

Courses of Action

There are a few different courses of action that a Senator could take. These include doing nothing, changing the law, repealing the pardoning power, and investigating and impeaching the president. 

Do Nothing

There are a few different courses of action that a Senator could take. One of these could be to do absolutely nothing. This could result in not increasing the rift between the Democrats and Republicans, which would also happen if impeachment were to be pursued. Also, even if impeachment does not take place, states could pursue charges against Trump and his family regardless of what happens. However, if a Senator does not pursue impeachment, they would be setting precedent for future presidents that what Donald Trump did, abusing his pardoning power, is acceptable. Additionally, it would tremendously expand the power of the executive branch because everyone would see that a president can get away with serious crimes by abusing the pardoning power. 

Investigate and Pursue Impeachment

Another alternative for a Senator is to pursue impeachment. They could fight to impeach Trump for his crimes and set the precedent that a president cannot go unharmed if they abuse the pardoning power. Additionally, Trump would be banned from taking office ever again, putting out a big flame in the White House. However, pursuing impeachment would increase the rift between the Democrats and Republicans and the impeachment might not even be supported by enough members of the Senate to go through. 

Repealing the Presidential Pardoning Power

Another course of action that a Senator could take would be to pursue the repealing of the presidential pardoning power. Although this is not recommended or likely possible, this course of action is an option. 

Amend Constitution to Establish Restrictions On The Pardoning Power

Another route that a Senator could take would be to push to amend the Constitution in order to establish restrictions more clearly on the pardoning power. Although this would be a grueling and draining process that would cause legal, philosophical, and political debates that will further divide the nation, pursuing a change in the law would prevent future presidents from abusing the pardoning power and make a permanent contribution to our democracy. 

Do NothingInvestigate and Pursue ImpeachmentLegal ReformRepeal Pardoning Power
Positives– does not increase the rift between the Democrats and Republicans– sets the precedent that a president cannot go unharmed if they abuse the pardoning power
– Trump would be banned from taking office ever again
– prevents future presidents from abusing the pardoning power
– specifies restrictions on the pardoning power
– strengthens our democratic system
– there would be no chance for a future president to abuse this power
Negatives– sets precedent for future presidents that abusing the pardoning power is acceptable. 
– tremendously expand the power of the executive branch 
– would increase the rift between the Democrats and Republicans
– impeachment might not be supported by enough members of the Senate to go through
– grueling and draining process
– would cause legal, philosophical, and political debates that will further divide the nation
– getting rid of a power that the Founding Fathers gave the president

Recommendation

I would recommend that the Senate first of all to investigate then impeach the president, as the impeachment process was exactly created for cases like these, and then try to change the Constitution in order to prevent any future president from abusing his/her power like Trump.  

Conclusion

Trump has made several questionable pardons that should be investigated. Some of these could result in another impeachment for the president. James Madison, Alexander Hamilton, and the Founding Fathers created the pardoning power to “temper justice with mercy,” not to abuse it as Trump has likely done. Many of Trump’s impeachments also indicate that there needs to be legal reform and additional restrictions need to be adopted. The executive power should be limited with checks and balances and the crimes that can be pardoned should be specified as well. There needs to be constitutional change and the government needs to take action.

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