At its best, the presidential pardon power is a tool of mercy, an instrument to correct abuses of power and miscarriages of justice. At its worst, this imperial power can be employed as a corrupt tool to suppress evidence, block punishment for great offenses and crimes, and pour a path for illegal efforts to circumvent constitutional guardrails essential to the preservation of the rule of law and the republic. Doubts about the wisdom and judgment of pardons granted over the past half century by Presidents Gerald Ford, George H.W. Bush, Joe Biden and Donald Trump, have made a compelling case for the amendment of the Constitution to subject this most discretionary of the executive powers to the doctrine of checks and balances.
The restraints on the pardon power that the Framers of the Constitution thought sufficient to induce its judicious exercise-- essentially impeachment and judicial review-- seem today to be largely ineffectual, especially the impeachment power, which does not carry much of a stigma, as demonstrated by the recent election of President Trump, who was twice impeached. The pardon power can inflict harm on the rule of law, particularly if it shields from the threat of punishment those who have abused it for self-gain. Restraints are in order.
In 1974, President Ford’s pardon of Richard Nixon spared the Watergate president a likely trial for fundamental offenses against the United States, and persuaded Sen. Walter Mondale (D-Minn.) to propose an amendment to the pardon power, the wisdom of which resonates in our time, when the abuses of the unilateral authority seem to have outstripped the virtues envisioned by the Framers. Sen. Mondale introduced the proposition that, “No pardon granted to an individual by the President under Section 2, Article II shall be effective if Congress by resolution, two-thirds of the members of each House concurring, disapproves the granting of the pardon within 180 days of its issuance.”
The Mondale Amendment may not have stopped President H.W. Bush from pardoning Secretary of Defense Casper Weinberger, who was prepared to swear at trial that then Vice-President Bush, like President Ronald Reagan, was intimately involved in the arms -for- hostages trade that lay at the center of the Iran-Contra Affair, which violated the Constitution and seven statutes. And the availability of the Mondale Amendment might not have persuaded Congress to thwart President Trump’s pardon for those on January 6 who engaged in violence against Capitol police and were found guilty of sedition, but it’s very presence and the citizenry’s familiarity with it, would serve to hold accountable members of Congress who would vote to sustain acts which few Americans support. For that matter, it’s not clear if Congress would have intervened to check President Biden’s pardons to family members. Would the legislative branch have rallied behind Biden’s preemptive pardons? A robust debate on the pre-conviction pardons --healthy for Congress and the public--would have been fascinating. Would defenders invoke the Speech and Debate Clause as constitutional protection for members of the January 6 committee? Would Trump’s supporters assert prosecutorial authority as the overriding power? In the end, governmental accountability --for the president and Congress alike-- is critical to republicanism.
There is considerable merit in Mondale’s proposal, but the 180-day period is too long and should be shortened to 45 days as a faster means of promoting mercy and justice. Above all, it would place the pardon power in the mainstream of the political system by rendering it subject to the checks and balances that define American Constitutionalism and corral the remainder of the president’s powers. A busy Congress would not be apt to intervene, and only then in controversial cases. Thus, the vast number of pardons, noncontroversial in character, would be issued in the same way they have always been--on the basis of the independent judgment of the executive branch. The Mondale proposal, however, would afford Congress an opportunity to carefully review particular acts of executive clemency. And if it were indicated, Congress could check the presidential abuse of the pardon power. The nation would have little to lose with such a constitutional amendment and it would have much to gain. At the very least, the amendment would make it more difficult for high-ranking officials and presidential aides and cronies engaged in efforts to undermine the republic to escape justice.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
Comentários