Interrupt the Pardon?
The controversy over the Libby commutation raises a question that has been with us from the framing of the Constitution: Does the vesting of the pardon power in the President lead to corruption, as Presidents use it---or the lesser included power to commute a sentence---to reward their friends and cronies? The issue is all the more acute since the 22nd Amendment ensured that second-term Presidents would pay no direct political price because they know they don't have to face the voters.
By way of comparison, it's worth noting that many states have gone away from the traditional system whereby the Governor in his or her discretion grants clemency, and towards vesting the power to grant clemency in a Pardon & Parole Board. Even in states where the Governor maintains the nominal power to pardon or grant clemency on his or her own motion, that power is often not exercised so as to avoid "politicizing" the process. Indeed, even at the federal level, pardons are generally handled through the Office of the Pardon Attorney, except of course, when they're not.
It's clear from Article II and Supreme Court precedent that the President has the power to pardon on whatever grounds he deems appropriate, regardless of the criteria and advice of the Department of Justice. Only a constitutional amendment could eliminate or curtail this residual discretionary power. I don't kid myself that such an amendment is in the offing, but it's worth asking whether it would be a good idea if possible.
On the plus side, taking politics out of the pardon/clemency process would foster fairness and prevent lame duck Presidents from abusing the power to undermine independent prosecutions. On the minus side, there are probably some worthwhile pardons that would not satisfy any generally desirable criteria and are such hot potatoes that ONLY a President can take the heat for them (whether or not he's a lame duck). Ford's pardon of Nixon was, in retrospect, probably an example. On balance, that's not enough to justify our current system, so count me as mildly favoring tinkering with the pardon power if and when there's a Constitutional Convention.
By way of comparison, it's worth noting that many states have gone away from the traditional system whereby the Governor in his or her discretion grants clemency, and towards vesting the power to grant clemency in a Pardon & Parole Board. Even in states where the Governor maintains the nominal power to pardon or grant clemency on his or her own motion, that power is often not exercised so as to avoid "politicizing" the process. Indeed, even at the federal level, pardons are generally handled through the Office of the Pardon Attorney, except of course, when they're not.
It's clear from Article II and Supreme Court precedent that the President has the power to pardon on whatever grounds he deems appropriate, regardless of the criteria and advice of the Department of Justice. Only a constitutional amendment could eliminate or curtail this residual discretionary power. I don't kid myself that such an amendment is in the offing, but it's worth asking whether it would be a good idea if possible.
On the plus side, taking politics out of the pardon/clemency process would foster fairness and prevent lame duck Presidents from abusing the power to undermine independent prosecutions. On the minus side, there are probably some worthwhile pardons that would not satisfy any generally desirable criteria and are such hot potatoes that ONLY a President can take the heat for them (whether or not he's a lame duck). Ford's pardon of Nixon was, in retrospect, probably an example. On balance, that's not enough to justify our current system, so count me as mildly favoring tinkering with the pardon power if and when there's a Constitutional Convention.
posted by Michael C. Dorf @ 8:52 AM
7 Comments:
At 10:42 AM,
egarber said…
I may be missing something, but even the original justification put forth by Hamilton in Federalist 74 seems counterintuitive.
For example, he writes:
As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.
Here, Hamilton is apparently saying that a given pardon power is better exercised by one than by a committee, because accountability concentrated is better than accountability dispersed (I guess). My question here: Why? Why in this case is a panel of one better? If it is, why not say all court panels should simply consist of one judge?
Maybe I’m wrong, but it seems to me that Hamilton is just rationalizing here. That could be, since it’s likely this wasn’t a very contested part of the proposed constitution (I welcome corrections) – outside of the debate over whether the president should have sole power to pardon those accused or convicted of treason.
At 8:34 PM,
Justin said…
I read that excerpt as being not about accountability, but instead about responsibility. The argument seems to me to flow like this:
Because responsibility over this aspect of the legal system is undiluted, the person who exercises that power must do so under the full burden of the consequences. A single person who knows that he alone makes the decision to subvert the power of law will take caution in doing so; where a group charged with the same responsibility could take solace in knowing that the subversion of law was undertaken by a committee that shares the responsibility.
The argument makes sense to me, and from a philosophical/rhetorical standpoint it resonates today. However, that isn’t necessarily the only argument, and in a modern setting I don’t think that pardons are necessarily awarded by a president who is concerned about subverting the power of law.
At 10:53 PM,
sald13 said…
I am not so much concerned with the presidential pardon. This was widely expected from this administration. My real concern rests with the fact that everyone appears to accept this as a legal act. I don't believe it is. I believe the intent of this power is more of a remedy of last resort. This is meant to happen after all legal remedies are exhausted via the judicial system. Jumping from conviction to presidential pardon is, in a roundabout way, a due process violation. I believe the media should focus on a whether the judicial machine has been unlawfully circumvented by the President.
At 12:51 AM,
egarber said…
Because responsibility over this aspect of the legal system is undiluted, the person who exercises that power must do so under the full burden of the consequences.
To clarify, I didn't mean political accountability; I meant that Hamilton apparently thought one person would be more accountable to the ideal of mercy than a group.
And I don't see why that is so, any more than I think one appeals court judge would be more accountable to an ideal than a panel of them.
A single person who knows that he alone makes the decision to subvert the power of law will take caution in doing so
Granted, it's not quite the same thing, but I think we've seen a test of that theory in other areas under this administration. I see a president who has decided to "subvert the power of law" as the sole decision-maker (via inherent executive power theory) -- but I don't see much caution. In fact, it's the opposite (imo): concentrated power creates an exclusive province, eliminating any real need to exercise caution.
At 4:53 PM,
Benjam said…
after reading the post, i began wondering about the need for the pardon power. it first struck me as a reflection of an imperial presidency to the extent that a citizen could always petition the king. from that standpoint, the pardon power doesnt really seem consistent with a system based on the rule of law.
today, i was browsing through some of my old teaching materials, and I noticed that i describe the pardon power as a (minor) executive check on judicial power. to the extent that checks and powers places limits on any given branch to act unilaterally AND with finality, it does seem consisitent with the constitutional design to check the finality of judicial convictions. as such, i think i'm inclined to leave the pardon power in place.
At 5:30 PM,
egarber said…
Benjam, good point about the pardon itself being a check on power...
Hey, I just watched MTP, and Todd Purdum of Vanity Fair made an interesting observation about the commutation.
He said:
No, that’s true there were people in his base who weren’t happy, and the other interesting thing is, going forward, as my own colleague Adam Liptak of The New York Times pointed out, in terms of creating a precedent the president’s commutation may play in future cases in a way that a pardon wouldn’t. People would have said, “You pardon Mr. Libby out of political conviction,” but now he’s established his own judgment about whether the sentence was excessive, and every defense lawyer from here to who laid the rails is apt to cite the president of the United States in, in case, case after case.
So maybe the half-baked use of the pardon power here could have unintended impact on other cases?
Two questions for anybody:
1. Is a commutation unique in this regard, in that defense lawyers might actually cite it in future cases?
2. How often have presidential pardons been cited as precedent in later cases? Probably nearly never, I suspect.
And I guess one irony in all of this would be that a Republican President's opinion could be used in future cases to weaken sentencing guidelines, even as the GOP typically pushes for full sentencing when we're talking about all other crimes. In fact, John Dean wrote that the impediment to Libby remaining free during the appeals process was a Republican-passed reform bill under Reagan.
At 10:44 PM,
PG said…
Speaking of a Constitutional Convention, what do you think of Larry Sabato's symposium? He was pimping it heavily at my college reunion.
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