Presidential Pardon
Return to home page: https://mbkelly.net/index.htm
Return to amendments page: https://mbkelly.net/politics/index_amendments.htm
PATH D:\Bryan\WEB_PAGES\us-path_forward.com\presidential_pardon.htm
D:\Bryan\WEB_PAGES\us-path_forward.com\presidential_pardon better nav bar.htm
Either House of Congress may void any presidential pardon with a majority vote. Any member of either house may initiate a voiding petition and may require a public vote within 20 congressional working days. Once voided, Congress shall not reinstate the voided pardon. The president shall not pardon anyone within their administration and shall not pardon anyone with whom there may be a conflict of interest. The power of presidential pardon is limited to affairs of the United States federal government. The individual states have the authority to regulate the power of pardon within their states.
Each line of that proposal is presented and discussed below
U.S. Constitution, Article II, Section 2
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
A strict word by word reading of that sentence yields but one restriction on the presidential pardon. But the story does not end there. Recent events, since the Nixon presidency, indicate that this topic warrants further consideration.
There have been a litany of presidential pardons that have drawn the ire of the press and many in the public. However, until now, there has never been a president that flouted that power to the degree that Donald Trump has. With a truly unprecedented amount of speculation of bad behavior, both before and after taking office, Trump has gone so far as to declare that he has the absolute right to pardon himself.[1] This in of itself is alarming. If he has the authority to pardon himself, then he clearly considers himself significantly above the law.
The constitution does not address this directly, meaning that by the words alone, and strictly speaking, that possibility may be there. There are arguments on both sides and there is little to no possibility of establishing a conclusion that can stand against any assault.
President Nixon, knowing full well that he would be thrown out of office if he did not resign did not attempt to pardon himself.
From an article found on Bloomberg.com:
In a legal opinion issued just four days before Nixon stepped down, the Justice Department’s Office of Legal Counsel concluded that a president can’t pardon himself. The opinion was written in response to concerns that he might try to do so.
Note that the stated opinion was not written as a result of Nixon’s behavior. John Dean, former White House counsel to Nixon is reported as saying that he was aware of no discussions by Nixon of this and doing so would lead to immediate impeachment. This does contradict the current situation of Trump explicitly stating he has that right. While Trump has initiated no such obvious activity, the public and Justice Department cannot be fully aware of what he might be planning or already has planned.
JSTOR (Journal Storage), Vol 38, No 4, has an article titled: The Law: Presidential Misuse of the Pardon Power, by Jefrey Crouch, American University. The encompassing web page is found here:
https://www.jstor.org/stable/41219712?seq=1#page_scan_tab_contents
The abstract:
Before Watergate, presidents were generally reluctant to pardon executive branch officials after their administrations had been investigated by an outside prosecutor. Since Watergate, however, presidents are less reluctant to use clemency for their own personal interest, as demonstrated by controversial clemency decisions involving executive branch officials or cronies made by our most recent three presidents. This practice is contrary to President George Washington's use of the clemency power and later legal precedents, both of which follow the framers' intent that the pardon power be used as an "act of mercy" or for "the public welfare. "When and how presidents began misusing the pardon power, and the resulting consequences, are discussed here.
There is an introduction that, in particular, notes that presidents G.H.W. Bush, Bill Clinton, and G.W. Bush each used clemency in inappropriate ways, either to help their own executive branch officials and possibly themselves to avoid judicial prosecution….
Crouch makes a distinction between those presidents and all those that preceded them.
This observer notes that, in this regard, and with Trump’s behavior, this country is clearly in a downhill slide.
Here is a reasoned argument found on USA Today here:
The origin appears to be a Justice Department memo delivered four days before President Richard Nixon resigned in 1974.
But that same opinion suggested a workaround: The president could temporarily step down under the 25th amendment, saying he was unable to assume the duties of his office. The vice president, as acting president, could grant the pardon — and then the pardoned president could resume office.
Further down in the article is this paragraph.
There is something of a precedent. In 1992, President George H.W. Bush pardoned six former administration officials involved in the Iran-Contra affair in what independent prosecutor Lawrence Walsh called a "cover-up" of Bush's own role in the scandal.
Returning to today’s situation, Trump might ask Pence to take that actions. I don’t know enough about Pence to assess if he would follow Trumps request, but I do not put those actions out of the realm of possibility.
Its time that we do just that.
This organization wrote a memo to Congress about legal limits on the pardon power:
https://protectdemocracy.org/pardons/legal-limits-pardon-power/
While they wrote at length, with many references, the core of their memo is legal arguments. While those arguments may be, and are strong, the wording of the constitution still reigns supreme.
While many can debate at length about Supreme Court rulings and the rule of law, there are no additional words in the constitution that explicitly limit the power of the pardon. This has been severely exacerbated by Trump’s behavior. While the final word has not been written, there are many that hold Trump’s pronouncements concerning the power of the pardon have had a significant influence on the politics of today.
Either House of Congress may void any presidential pardon with a majority vote.
The current situation is that the Republicans in Congress have been extremely reluctant to stand up against the bad behaviors of Trump. Before the 2018 elections neither House would have been able to pass a resolution against a Trump pardon. After those elections the House is able to do that. The power of pardon is not essential to the ability of the government to function. But now it has become a political pawn. It should be relatively easy for Congress to void a pardon and remove that option for political play. If either house finds sufficient will and need to pass a resolution voiding a pardon, then it should have that capability unfettered by possible political cronyism in the other house.
Any member of either house may initiate a voiding petition and may require a public vote within 20 congressional working days.
It is all too common for a single member of Congress to be able to completely block any bill or resolution or stop discussions or debate on any given topic. This holds for committees as well as for the entire house.
An article with the dateline of June 16, 2012, 6:10 p.m., is titled: Five obscure tactics to snarl Congress.
1. Quorum-busting. If a sufficient number of members are not present a vote cannot be held. In 19
2. 88, 46 Senate Republicans who walked out on a vote were issued arrest warrants to return. The bill was killed despite those warrants.
3. Denying unanimous consent
4. Using layover rules
5. Refusing a vote.
a. The single person, the Senate majority leader, can refuse to allow a vote. This can be done regardless of the will of the remainder of the Senate.
6. Reviving Calendar Wednesday
Wikipedia has an article with this title:
https://en.wikipedia.org/wiki/Senate_hold
The first two paragraphs are quoted:
In the United States Senate, a hold is a parliamentary procedure permitted by the Standing Rules of the United States Senate which allows one or more Senators to prevent a motion from reaching a vote on the Senate floor.
If the Senator provides notice privately to his or her party leadership of their intent (and the party leadership agreed), then the hold is known as a secret or anonymous hold. If the Senator objects on the Senate floor or the hold is publicly revealed, then the hold is more generally known as a Senatorial hold.
Noted that this requires two people. Then again, the Senate Majority leader can do this single handedly.
Further down is:
According to Congressional Research Service research, holds were not common until the 1970s, when they became more common due to a less collegial atmosphere and an increasing use of unanimous consent to move business to the floor.
Returning to Wikipedia here:
https://en.wikipedia.org/wiki/Hastert_Rule
The Hastert Rule, also known as the "majority of the majority" rule, is an informal governing principle used in the United States by Speakers of the House of Representatives since the mid-1990s to maintain their speakerships and limit the power of the minority party to bring bills up for a vote on the floor of the House. Under the doctrine, the Speaker will not allow a floor vote on a bill unless a majority of the majority party supports the bill.
Even when there are sufficient votes amongst all the Representatives to pass a bill, if there is one too many members of the majority, the bill is blocked. This is a perversion of democracy.
Note that this was enacted in the 1990, by Republicans, notably Gingrich and Hastert. It is noted as a rule that helps the Speaker of the House keep his position regardless of the will of the complete majority of the house.
Once voided, Congress shall not reinstate the voided pardon.
Referring again to the current political situation: Presume that Trump issues a pardon that the House determined was inappropriate and that the House passed a resolution voiding that pardon. It is conceivable that today’s Senate might well declare the House wrong and vote to re-instate that pardon. In consideration of today’s political climate, and the rancor between the two parties, this must be prohibited before it even starts.
The president shall not pardon anyone within their administration and shall not pardon anyone with whom there may be a conflict of interest.
This has, apparently, not been a problem worth noting, until now. Trump’s behavior has now make this a problem. So has that of the three noted recent presidents, Bush, Clinton, and Bush. There is a trend here and it is time to stop it before it worsens.
The power of presidential pardon is limited to affairs of the United States federal government. The individual states have the authority to regulate the power of pardon within their states.
This is congruent with the tenth amendment which states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In consideration of the animosity of today’s political climate, prevent any arguments before they start and re-affirm the states right and the limits on federal government.
If we pass an amendment such as this, make it clear and make it complete. For the purpose of brevity, the original authors kept the constitution as brief as possible. There is much to be said for that. The concept has been a guiding light for more than 200 years. However, recent events have shown that clarity is now needed more than brevity.
Regardless of your point of view of Donald Trump, he has repeated thrown out warnings and promises of presidential pardons. He has been sufficiently concerned to make the public statement that he has the absolute right to pardon himself.[2]
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
A strict reading of just the last phrase indicates that there are no further limits on the prerogative of presidential pardons. Indeed, the New York Times, the day before President Nixon resigned, wrote:
The exception means that he cannot restore the standing of a Federal officer who has been impeached and removed from his position; it does not mean that a President cannot pardon himself before his own impeachment.
At this point, the arguments as to the limits of presidential pardon can branch off in many directions. There are those on both sides of the question, yes he can versus no he cannot, that are certain their position is correct.
Regardless of your position, the following is clear. The three branches of the federal government, executive, judicial, and legislative, are specifically designed to spread out the power and authority, and thereby to provide checks and balances. The presidential pardon has no checks and balances. Now that D. Trump has made a significant issue of this, it is time to install a check on the presidential pardon.
From the Constitution, Article 6
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This passage means that no person or institution is above the law and that all persons, institutions, and entities are subject to the constitution.
The constitution was intentionally written with the intent of separation of powers. The explicit goal was to prevent too much power from being vested in a single branch of government. For that reason it divides the government into three relatively independent branches. Each branch can and does serve as a balance to the other two.
The houses of Congress make the laws, but they are subject to, first the Constitution, and second to the laws they have created. They may create no laws that are in contradiction with the Constitution.
The executive branch carries out the laws and enforces them, but they are subject, first, to the Constitution, and secondly, to the laws made by Congress.
The Judicial branch neither makes laws nor enforces them. It interprets the laws and makes two determinations. First, is the law constitutional? Is it legal according to the Constitution? If not, the Court can, and does, rule that the law is invalid and voided. Second, the court determines if the law is being followed correctly. That fact that the Courts do not make the law is check upon their power. But, this leaves the Supreme Court with effective no check on its power and authority. That is the subject or another essay.
I am tempted to include this sentence:
Congress may determine that an abuse of the presidential power of pardons is an impeachable offense.
However, I fear being unduly influenced by the extraordinarily bad behavior of Trump. Given the entirety of this proposal, and if enacted, all violations would be in contradiction to the constitution that the president swears to uphold and would therefore be an impeachable offence. Still, it seems that we might need a clarification to a Congress that is reluctant to throw out a misbehaving president. Witness the reluctance to impeach Nixon. And witness the refusal of the Senate to convict Trump.
The concept of the president of the United States having an un-checked and unchallenged ability to issue pardons does elevate the presidency, to a significant degree, to be above the law. It is time to put a check and balance on this authority.
[1] https://www.cnbc.com/2018/06/04/here-is-what-9-experts-say-about-whether-president-trump-can-pardon-himself.html, 4 June 2018. From the article: President Donald Trump said on Monday that he had the "absolute right" to pardon himself — a view he said was shared by "numerous legal scholars."
From a Trump tweet, 5:35 AM – Jun 4, 2018 “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”
[2] https://www.cnbc.com/2018/06/04/here-is-what-9-experts-say-about-whether-president-trump-can-pardon-himself.html, 4 June 2018. From the article: President Donald Trump said on Monday that he had the "absolute right" to pardon himself — a view he said was shared by "numerous legal scholars."
From a Trump tweet, 5:35 AM – Jun 4, 2018 “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?”