Rep. Nadler’s Proposal to Amend the President’s Pardon Power
posted by Brian Kalt
Rep. Jerrold Nadler (D-NY) is apparently going to introduce a constitutional amendment to limit the president’s pardon power. It would prevent presidents from pardoning members of their own administrations for their official acts, and would limit the pardon power in the last months of a presidency.
Nadler is apparently worried that President Bush will do both of these things, and issue lame-duck pardons of his subordinates for their role in the administration’s controversial torture and surveillance policies. [One might wonder why Nadler didn't have anything to say about President Clinton's controversial last-day pardons of a member of his administration (Henry Cisneros), and a domestic terrorist who had enlisted Nadler's assistance in the pardon process (Susan Rosenberg of the Weather Underground). To be charitable towards Nadler, though, Rosenberg wasn't a member of the Clinton Administration, and Cisneros's criminal conduct did not arise out of his Cabinet duties, so his proposed amendment is consistent with allowing those pardons.]
To me, the most interesting thing about Nadler’s proposal is how diametrically opposed it is to the Framers’ conception of the pardon power. This is not a criticism of Nadler’s proposal as such—by definition, constitutional amendments are inconsistent with the constitutional provisions that they are trying to change. But it is striking, and illuminating.
When the Framers debated the pardon power, Edmund Randolph (later the nation’s first attorney general) proposed that the president should be forbidden from pardoning people for treason. As Madison’s notes record Randolph’s argument: “The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”
But Randolph’s motion was soundly defeated, and so presidents have the power to pardon treasonous conspirators that they themselves have directed. For the Framers, this was not too great a trust, for the same reason that the president is the best repository of the pardon power: the president is politically accountable to the whole nation, in a way that no other official in the government is, and he is not above the law.
These themes are evident in the debate. The response to Edmund Randolph came from James Wilson (later the first justice sworn onto the U.S. Supreme Court), who said: “Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.” The pardon power is an important safety valve in the legal process, and its importance is heightened in serious cases like treason. It is not that Wilson thought no president would ever issue a bad pardon. It was that he thought that no president would be able to count on doing so with impunity.
It is certainly true that presidents are politically unaccountable at the ends of their terms. Consider President Bush (41) on Christmas 1992 (when he pardoned figures in the Iran-Contra scandal), or President Clinton in January 2001 (when he pardoned ‘everyone and his brother’), or President Bush (43) right now—at that point in the term, they know they will never face the voters again. But accountability runs further than elections. Presidents are also accountable to Congress, and to the criminal law. As Wilson noted, presidents can be impeached and prosecuted.
This might ring hollow to some readers, and it’s why I will be blogging this month about the ability of presidents to pardon themselves, the ability to impeach presidents after they have left office, and the ability to prosecute presidents. One thing to mention right now, though, is that even if the president has the power to issue a corrupt pardon, he cannot do so with the assurance of impunity. Corruption is corruption, and can be punished. A pardon issued in exchange for a bribe, or as part of a criminal conspiracy, might make some underlying criminal charges go away, but it tees up a new one. [Some have characterized President George H.W. Bush's pardons of Iran-Contra defendants—after Bush had been defeated by Bill Clinton, but before Clinton took office—as the closest thing we have seen to Randolph's scenario, since Bush himself was a target of the investigation, which his pardons effectively shut down. I reject this characterization. Bush still could have been prosecuted or even (I argue) impeached.]
At some level, I am sympathetic to the second part of Rep. Nadler’s proposal, because I think that the president, while still accountable in his last few weeks, is so much less accountable that the potential for mischief exceeds the benefits on unrestricted power. Perhaps allowing two-thirds of the Senate to override such lame-duck pardons would make sense. But in the grand scheme of things, this is a trifle. We don’t amend the Constitution over such things, and it is largely pointless to try.
I am less sympathetic to Nadler’s other proposal, because it is problematic to limit the president’s ability to pardon his own subordinates. Again, it is not that such pardons are necessarily good (or ever good, for that matter). It is that our Constitution generally does not try to get specific. It relies on structure, on the political process, and on the rule of law. For instance, instead of specifying the qualifications for offices, the Constitution relies on the Senate to use its confirmation power wisely, and for presidents to make their nominations with that in mind. By the same token, the Constitution does not restrict the pardon power much, because it relies on the political process, the impeachment process, and the criminal law to prevent ill-advised or corrupt pardons.
Perhaps Rep. Nadler wouldn’t disagree with any of this. Maybe his proposal is intended not to actually lead to a new constitutional amendment, but to cow the president into withholding pardons. Maybe, in other words, Nadler is using the political process to hem in the pardon power. If that’s what he is doing, then the system is working just fine. And if and when his proposal quickly fizzles for lack of political support, the system will be working just fine then too.