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.
December 5, 2008 at 10:41 pm
Posted in: Constitutional Law, Current Events, Politics
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Responses (10)
whiskey - December 6, 2008 at 12:38 pm
And, as experience has shown us, he thought wrong. Insofar as the Constitution’s provisions are predicated on the political process happening in a certain manner, when history shows that the political process happens in a manner unlike that presumed by the framers, it is appropriate to amend the Constitution to correct the error.
The departure from the loser of the presidential election attaining the vice presidency; direct election of Senators: these were based on realizations that the rationales underlying the respective parts of the Constitutions were faulty.
TJ - December 6, 2008 at 4:07 pm
Brian, one piece missing in your analysis (and, I submit, a big piece) is that when the Framers were debating this they did not have in mind a president who would be term-limited, the 22nd amendment being a century away, and even the Washington tradition having not yet been established. Thus, in their world, a president would almost always have the next election to look forward to, absent ill-health or some other reason to retire.
Orin Kerr - December 6, 2008 at 4:20 pm
Thus, in their world, a president would almost always have the next election to look forward to, absent ill-health or some other reason to retire.
But wouldn’t there always be a window after the election returns were counted (and the incumbent was declared the loser) when the incumbent would not have the next election to but would have the pardon power?
Anon21 - December 6, 2008 at 5:12 pm
But wouldn’t there always be a window after the election returns were counted (and the incumbent was declared the loser) when the incumbent would not have the next election to but would have the pardon power?
A fair point, but it’s not clear how long the Framers would have expected that window to be, in practice. After all, they contemplated no popular election for President, and given that they vested the power to determine the timing of the Presidential election to Congress and did not specify its relation to the end of a President’s term, it’s certainly conceivable that Congress could have mandated that an election be held very close to the time that the President’s term was to expire. Indeed, our political system is somewhat anomalous in terms of the length that a lame duck stays in office–even after the reduction effected by the 20th Amendment, it’s still a period of two and a half months, whereas in parliamentary democracies, seldom more than a few weeks pass between an election that turns the incumbent government out of power and the handover of power to the new government. Nothing in the unamended Constitution mandates or suggests the length of lame duck time that was eventually established.
Brian Kalt - December 6, 2008 at 8:50 pm
I think Orin’s response to TJ is right. Unless the Framers expected every president to rule for life (which, I submit, they did not), their design necessarily contemplated a lame-duck period.
Anon21, I disagree. Check out the unamended version of Article II. Provision one is for a fixed, four-year term. Next comes a provision for a geographically dispersed presidential election, on a single day prescribed by Congress. Then there is a wait for the votes to be counted and, if nobody wins, a new vote in Congress. And in the background is that four-year fixed term, clock a-tickin’. I think it is fair to say that they contemplated some cushion in there between Electoral College Day and Inauguration Day, or at least designed a system in which a long such period was an obvious consequence.
The lame-duck period came early, caused problems right away (see, e.g., Marbury v. Madison), and yet remained.
In any case, as I hope to discuss more at some point this month, none of this changes the susceptability of the president to impeachment and/or prosecution for inappropriate/corrupt pardons. None of it changes the fact that like so many other things in the Constitution (like the power to pass legislation) the primary check is not something hard-wired into the Constitution, but rather is simply reliance on the political process.
Andrew - December 7, 2008 at 1:03 am
I guess I take issue with the last part of your post. I fail to see how this provision isn’t “structural.” Even your own analogy to the Appointments Clause shows how the Constitution does, in fact, “get specific” when the political process cannot provide an effective check on the use of power. Both the Incompatibility Clause and (as we have all recently learned) the Emoluments Clause provide quite specific exclusions on who may not serve as an Officer. In a nation of 300 million, Article I Section 6 singles out less than six hundred people for exclusion from office. Thus, the President has wide freedom to nominate officers, but there is an exclusion where the risk of self-dealing and bad faith is most present. Why can’t we do the same thing with the pardon power–limit it only from those cases where those risks pose the greatest danger?
I also wonder why you think that Nadler’s proposal is aimed at Bush? Even if this were adopted (and, as with all amendments, it almost certainly never will be), it could not possibly be enacted in time to prevent Bush from pardoning his subordinates. (Unless he’s proposed that the amendment have retroactive effect.)
TJ - December 7, 2008 at 2:37 am
Orin, yes, there was always going to be a lame duck period. But there is a significant difference between having four years of incentives to work diligently to get reelected and two months to pardon at the end if it doesn’t work out; and having four years of virtually no political accountability, with advanced knowledge that the end is coming, and then the ability to pardon all illegal conduct in the end.
Given the way the pardon power works now, I don’t understand why a president could not (and if the president can, why a president has not) completely disregard statute and Supreme Court orders for all four years of his second term and then pardon his entire administration on the way out. If the only limit is impeachment, then that is a receipe for four year dictatorships that are essentially above the law.
Brian Kalt - December 7, 2008 at 8:12 am
Andrew,
That’s a good point about the Emoluments Clause–the Constitution does indeed “get specific” in places, and when it does it is often to avoid self-dealing (a point I will raise when I write about self-pardons). (The Incompatibility Clause fits less well, I think, as it is mainly a separation of powers provision that doesn’t prevent the president from appointing anyone.)
I think your analogy doesn’t quite work, though. Because the check on presidential appointments is Senate confirmation, there is a risk of Senate collusion in some self-dealing. The Emoluments Clause ties the Senate’s hands (or doesn’t, if the Saxbe fix is constitutional) and fills the loophole in the structure. By contrast, extreme abuse of the pardon power is policed through political accountability, impeachment, and prosecution. Nadler’s anti-self-dealing proposal doesn’t fill any loopholes there. He doesn’t confront the purported flaw in the structure–that Congress has been over-reluctant to use its impeachment power much since the early 1800s.
The other part of Nadler’s proposal, limiting the pardon power at the end of the term, when the political accountability portion of the check is almost completely gone, is a better analogy: it directly addresses an inherent flaw in the check structure. And indeed, I think that it’s not a bad idea (though rather than ban such pardons outright, I would make them subject to override by some sort of congressional supermajority between 1/3 and 1/20). My objection to that part of his proposal is more that it will never actually get passed, unless maybe something crazy happens, like Bush pardoning himself or his whole administration. Nadler knows this, of course–his proposal is about political posturing. As I hope my post made clear, though, that’s just fine. Politics are supposed to be part of the process. But the amendment ain’t going anywhere.
While I’m here, TJ, I think that your point speaks more to the weakness of the impeachment process than to the weakness of the pardon provisions. Isn’t the biggest problem in your hypothetical the four years of lawlessness, not the pardons at the end? You also assume away the rest of the check, which is the ability to impeach and/or prosecute the ex-president for the pardons. I’ll be writing more about “late” impeachment in a couple of weeks.
Bruce Boyden - December 7, 2008 at 12:54 pm
Presidents are also accountable to Congress, and to the criminal law.
Re: criminal law, that’s true only if the President cannot pardon himself. It would be helpful if someone had written a student note on that topic…
Brian Kalt - December 8, 2008 at 7:42 am
Funny you mentioned that, Bruce. After all these years, I finally posted my note on whether the president can pardon himself to SSRN.
There are some important differences between the note and what I am writing about self-pardons now for my book, though.
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