Jan
23
2021

A Few Thoughts on the Pardon Power

“The President… shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

For the most part, the pardon power is a wonderful thing. How nice to give an ‘out’, where injustices can be corrected? But there are bad pardons also. How could we make Pardons better?

The worst kinds of pardons are self-serving and corrupt. Giving friends and allies a pardon simply because they are your friends and allies is a perversion of justice. We will have to continue living with that perversion. There is no way to define these situations, and it’s better to preserve the breadth of the power. I spent the last four years listening to Preet Bharara complaining that Trump ignored the Pardon Office as if that was so incredibly horrible. I think Pretty is wrong here, it is not such an obviously bad thing. The point of the power is to be outside normal processes, and each President should be free to deploy it as they see fit. It’s easy to imagine situations where the Pardon Office is a barrier against getting justice. If there is any solution to corrupt pardons, it is not to elect corrupt Presidents, not re-elect them, and hold it against the political party they come from.

No one gets a blank check.  President Ford erred here. He pardoned Nixon for “all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” By making it so broad, he set a bad precedent.

If someone gets a pardon, they get it for specific offenses. It can say “and other offenses related to the same incidents”, but not a blanket pardon for everything. If it’s not spelled out it’s not a pardon, it’s a magical cloak of immunity.

No pardoning yourself. It’s hard to believe this needs to said out loud. This was quickly addressed during the Nixon impeachment, under the theory that no man can serve as his own judge. My simple justification is that no one is above the law. If the Executive can pardon themselves, they are above the law, so it can’t happen.

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1 Comment »

  • Michael Weinmayr says:

    Here’s my suggestion for fixing the Pardon power:

    The President shall be required to make a video for each pardon. This video will explain what crimes the pardonee is being pardoned from, who the injured parties were and what happened to them, and why the President thinks the person should be pardoned.

    I want this to be a video, not just a written document. This increases the “ownership” on the part of the President.

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