Saturday, July 11, 2020

Need to Amend the Constitution to Limit Presidential Pardon Power, Part 2

In June of 2018, I wrote a column urging that we amend the Constitution to limit the pardon power of the President.  Today, because of President Trump's Friday night commutation of the sentence of political dirty trickster Roger Stone, I return to that subject.

The United States Constitution grants the President the power to "grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
Roger Stone

The commutation given to Stone is considered a "reprieve" from punishment via a commutation of his sentence.  Stone had been convicted of seven felonies, including obstruction of justice, making false statements and witness tampering, i.e. threatening a witness to try to keep him from testifying to Congress.  For these crimes he committed to hide his connection to WikiLeaks and protect President Trump, Stone was sentenced to over three years in prison.  Stone was about to start his sentence when he received the presidential commutation.

This news came only two days after Facebook announced that it had closed Roger Stone's Instagram account and had taken down more than 100 fake Facebook pages linked to Stone and Proud Boys, a neo-fascist group that promotes political violence.  The Proud Boys were big supporters of Stone during his criminal prosecution, attending court hearings and supporting his family during the ordeal.  Stone has also expressed support for Qanon, the kooky conspiracy group that believes there is a cabal of Satan-worshipping pedophiles running government, which President Trump was elected to stop.

In my 2018 column, I argued that the Founding Fathers never intended the pardon power to be as sweeping as it has come to be.  Now I provide more details.  As drafted, the Constitution in 1787  only identified three federal crimes - piracy, counterfeiting, and treason. While the architects of the Constitution no doubt expected Congress to add federal laws beyond those three, due to the nature of federalism they certainly thought the enactment of criminal law would remain almost completely the domain of state legislatures.   Indeed the Crimes Act of 1790, delineated only 17 federal crimes.   But by 2001, according to an article written by former Attorney General Edwin Meese, Congress had created more than 4,500 federal crimes while regulations issued by the executive branch added tens of thousands more.

In short, while the President's pardon power remain as constituted in 1787, that power has dramatically increased through the back door by expanding the federal criminal code.

In a piece published by LawFare in February of this year, Bob Bauer and Jack Goldsmith argue that a constitutional amendment is not needed to limit the President's parden power, that Congress can pass laws restricting that power:
Trump is not alone in his sweeping view of the pardon power. Decades ago, the Department of Justice advised Congress that “[i]n the exercise of the pardoning power, the president is amenable only to the dictates of his own conscience, unhampered and uncontrolled by any person or branch of government.” Woodrow Wilson’s attorney general framed the power in similarly grandiose terms, as “not subject to the control or supervision of anyone.” The courts have seemingly endorsed these constitutional judgments, referring to the pardon power as “unlimited” and deeming Congress unable in any way to “limit the effect of [a] pardon, nor exclude from its exercise any class of offenders.” 
So, it appears, lawmakers unhappy with grants of clemency are left to voice dissatisfaction and to press the president to explain....   But, barring a constitutional amendment, many people appear to believe that Congress can do nothing more to regulate the president’s “absolute” pardon power.   
We disagree. As we discuss in detail in a forthcoming book on institutional reforms of the presidency, there are limits Congress may and should impose on at least some exercises of the pardon power. And by prescribing those limits, the legislature can prevent or deter the most egregious abuses, while encouraging future presidents to adhere more closely to norms of process and restraint.   
Begin with the constitutional text, which grants presidents the “Power to grant reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The power covers only federal offenses and excludes the ability to pardon away an impeachment. But these are not the only limits. 
A pardon or commutation may be “absolute” for the beneficiary. But it would not in any way afford the president, as the grantor, immunity from commission of a crime in connection with granting a pardon, nor would it cover any such separate crime committed by the grantee. Congress could, for example, make it a crime for the president and the grantee to engage in a bribery scheme in which the grantee makes a personal payment or campaign contribution as part of an explicit quid pro quo arrangement. The president’s subsequent pardon or commutation would remain fully in effect for the offense pardoned, in accordance with the Pardon Clause. But the law would apply to the independent criminal acts committed by the president and the grantee in the course of reaching an illegal agreement about the terms on which a pardon would be granted. Congress can similarly criminalize the use of the pardon to undermine a judicial proceeding, which the president might do by offering it as a means of inducing false testimony. 
It is unclear whether the current obstruction of justice and anti-bribery statutes already criminalize these and related presidential acts. To resolve any doubts, Congress should make it an express crime for a president to offer to sell, or to sell, a pardon for personal financial benefit or a campaign contribution, or for the benefit of an immediate family member—or to use a pardon, or offer one, in a corrupt scheme to obstruct a judicial proceeding. 
Congress should also make clear that a self-pardon is not allowed and cannot be the basis for immunity from federal criminal investigation or prosecution....
Bauer is a former White House Counsel for President Obama and a professor at the New York University School of Law.  Goldsmith is a professor at the Harvard Law School.  Given their erudite legal credentials, I hesitate to question their argument.   But I find their argument baffling.  Even if Congress criminalized certain acts engaged in by a recipient in order to obtain a pardon for a crime, or for the President to issue such a pardon, what stops a President from issuing yet another pardon to cover the new criminal act relating to getting the pardon?

As far as that Congress "should...make [it] clear that a self-pardon and cannot be the basis for immunity from federal criminal investigation or prosecution," are Bauer and Goldsmith suggesting that Congress can, by statute, define a constitutional provision and thus tie a court's hands on its interpretation of that provision?  It is the job of courts to define constitutional provisions and determine their scope.  Congress' views on the meaning of constitutional provisions isn't worth a bucket of warm spit.  For an example, review the history of War Powers Act which Congress passed in a failed attempt to more narrowly definite the President's constitutional authority as Commander-in-Chief.

The commutation of Stone's sentence is merely the tip of the iceberg.  More pardons and commutations are coming.  Should he lose re-election, the pace of Trump's pardoning will increase and no doubt extend to his family and friends in the world of business and law.  Expect those pardons to be open ended and often precede those individuals even being charged with a crime.  In 1866, the United States Supreme Court ruled in Ex parte Garland that pardon powers can be exercised at any point after a criminal act has occurred, regardless of whether charges have been filed.

There is one thing that saves us from the pardon power being a vehicle to complete abuse of power by the President - federalism.  Many crimes still fall under state jurisdiction, and the President's power of pardon does not extend to state prosecutions.

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