Why We Should Amend The Constitution To Restrict The President’s Power To Pardon

Why We Should Amend The Constitution To Restrict The President’s Power To Pardon

Reining in the power of the executive, ever so slightly, might not be the worst idea. Of course, it should be about principle, not political targeting.
Kyle Sammin
By

The start of every new Congress sees a flurry of activity. Some is meant to accomplish something, some is just for show. The proposal of a constitutional amendment, especially, is often just a way of signaling to the crowds.

This time around, though, one proposed amendment that has not garnered much attention should get a serious look by lawmakers in both parties. Congress should pass Rep. Steve Cohen’s amendment barring the president from pardoning himself and members of his family.

An Unchecked Power

The ability to pardon criminals is one of the few truly unrestricted powers of the presidency. Much of the strength of that office has grown over the years due to court decisions, legal memos, and congressional surrender, but the pardon power has always been robust. Based on the ancient prerogative powers of the English monarch, the pardoning power in America is written plainly in the text of the Constitution and is unchecked by any other branch of government.

Unchecked powers are rare in American law. The amendment proposed by Cohen, a Democrat who represents Tennessee’s ninth district, would be the first explicit limit on the president’s power to pardon, but it is not the first time a limit was suggested. Even before the Constitution was adopted, anti-Federalists thought the pardoning power was too great. Gov. George Clinton of New York said it, and other powers of the presidency, would lead “to the establishment of a vile and arbitrary aristocracy or monarchy.”

George Mason of Virginia said the “unrestrained power of granting pardon for treason” could be “exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.” Some thought these men paranoid at the time, but their complaints sound very similar to those who oppose President Trump today.

Remember Roger Clinton?

For the most part, suspicions of the pardoning power have been overblown. No president has used it to create a “vile and arbitrary aristocracy,” nor has anyone used it to unleash a crime wave against his opponents and pardon all the criminals afterwards. But there have been scandals; Trump has not used the power to pardon himself or any member of his family, but other presidents have done so to a limited extent.

Roger Clinton may not rise to the level of “vile aristocrat,” but President Bill Clinton’s brother was the most recent family member of the chief executive to receive a pardon. Roger had already served his time in federal prison for drug trafficking and possession of cocaine, but the pardon allowed those crimes to be wiped from existence, making him no longer a felon.

Roger’s pardon did not generate too much controversy, overshadowed as it was by Clinton’s pardon of 16 Fuerzas Armadas de Liberacion Nacional Puertorriqueña (FALN) terrorists and Marc Rich, a wealthy tax cheat and fugitive from justice whose wife had made significant donations to the Clinton presidential library and to Hillary Clinton’s senate campaign. Cohen’s proposed amendment would only have prevented the least objectionable of those pardons, but the language is still fairly sweeping. According to the proposed text:

The President shall not have the power to grant pardons and reprieves to himself or herself, to the President’s brother, sister, brother-in-law, sister-in-law, spouse, parent, child, or grandchild or to the spouse of the President’s grandchild, to the President’s aunt, uncle, nephew or niece or to the spouse of the President’s nephew or niece, or to the President’s first or second cousin, the spouse of the President’s first or second cousin, the President’s mother-in-law, father-in-law, son-in-law, or daughter-in-law, or to any current or former member of the President’s administration, or to anyone who worked on the President’s presidential campaign as a paid employee.

That goes too far in some respects, likely because it is intended to target this president in particular. The definition of family is very broad. Is it seriously a problem that a president could pardon his second cousin? Or his nephew’s wife? It might make more sense (as well as being more concise) to put it in terms of degrees of consanguinity, which has a settled definition in law.

Either way, it is hard to capture exactly who is “family.” Even under Cohen’s broad definition, the sort of president who argues about what the definition of “is” is might well argue that Roger Clinton is not precluded from pardon by this list because he is a half-brother, not a full brother.

The provisions for non-relatives are similarly too sweeping. “Any current or former member of the President’s administration” presents the problem of defining “administration,” something the Constitution does not do. Courts could, perhaps, be trusted to divine the meaning of the phrase, but without better guidance it could be seen as including anything from the cabinet to the entire federal bureaucracy. Likewise, the definition of “presidential campaign” takes in low-level campaign staff but not big donors, contractors, or people involved in uncoordinated issue advocacy, all of whom are far more likely to seek presidential favor in a quid pro quo.

It’s Still a Good Idea

None of these defects should doom the first draft of a good idea. Cohen’s proposal draws attention to the oddness of a pardoning power in a republic. It makes for a strange contradiction that the chief executive, who is ultimately in charge of prosecuting crimes, should also be given the sole power to pardon them.

William Blackstone, in his “Commentaries on the Laws of England,” wrote that the pardon was natural in a monarchy but in “democracies, however, this power of the pardon can never subsist; for there nothing higher is acknowledged than the magistrate who administers the laws.” So why did the Framers include it in our Constitution?

In Federalist No. 74, Alexander Hamilton answered the question: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”

People in the Founding era expected laws to be enforced. Unlike the elected prosecutors of today who routinely announce that this or that crime will not be prosecuted, the ideal in the founding era was that if a law was found to be bad, people should work to repeal it. In the meantime, though, zealous enforcement could ensnare people who did not deserve to be punished.

The kind of pardons Cohen wishes to avoid are more like those imagined by Mason than those of Hamilton’s ideal. It is popular on the left to imagine that Trump will thwart all investigations into his 2016 campaign by liberal use of the pardoning power. That’s not altogether crazy.

Trump’s pardons have often been outside the normal bureaucratic process, including reprieves granted to Sheriff Joe Arpaio, author Dinesh D’Souza, and long-deceased heavyweight champion Jack Johnson. That is probably more in keeping with the spirit of the pardoning power as a grant of mercy from the executive, but it also signals Trump’s willingness to disregard the way things are usually done.

With all of this in mind, a better version of Cohen’s amendment might look something like this:

The President shall not have the power to grant pardons and reprieves to himself, his spouse, any relative within four degrees of consanguinity, the spouse of any such relative, or any current or former officer of the United States whom he appointed to office.

Besides keeping the language tighter, this formulation would keep the restriction from becoming so broad that destroys the utility of the power completely. It would be unconscionable to restrict a civil right based on a person’s relation to the president: people should not be treated differently under the law because of the family to which they belong. But no one has a right to a pardon, and the societal benefits of being related to the president of the United States vastly outweigh the minor inconvenience of being barred from being pardoned for committing federal crimes.

Constitutional Change Done Right

If President Trump’s opponents believe he will misuse the pardoning power, there are a couple of ways to prevent it. One is that, as with every transgression by a president, the Congress can ultimately resort to the threat of impeachment. Even with Republicans still controlling the Senate, a presidential self-pardon would place Trump in serious danger of removal from office.

The Cohen amendment was written as an attack on Trump, but all it is really is a sensible narrowing of the president’s power.

Because acceptance of a pardon is admission of guilt, Trump’s supporters in Congress would go from defending someone who may be innocent to defending an admitted criminal who wants to get away with his crimes. That makes a Senate vote for acquittal far less likely.

The other way to limit a constitutional power is, of course, to amend the Constitution. This is also a good reason for Republicans to support Cohen’s pardon amendment. When their proposals for change fail to be accepted, Democrats will often complain that the Constitution has become effectively impossible to amend.

Yes, it has been a while since it was successfully amended: the last amendment passed in 1992, but even that one had been hanging around since 1791. The last new amendment to pass became law in 1971.

The delay is not just because politics has become more of a zero-sum game. We have gone through plenty of such phases in our history. The problem is more that the amendments proposed have not attracted the super-majority of support necessary, usually because they are proposed by one party to benefit primarily that party’s supporters.

This amendment is different. Broadly worded as it is, it still addresses a rare problem. The last presidential family member pardoned was Roger Clinton in 2000. The last president to pardon a member of his administration was also Clinton, in his pardon of Housing and Urban Development Secretary Henry Cisneros in 2001. (George W. Bush commuted the sentence of Scooter Libby in 2007, but did not pardon him. Trump granted Libby a full pardon in 2018.) The Cohen amendment was written as an attack on Trump, but all it is really is a sensible narrowing of the president’s power, something Republicans would typically support.

Most constitutional change in living memory has been done by unelected courts stretching the text—even ignoring it—to meet the political desires of the moment. Cohen’s amendment, if passed, would make a small but important adjustment to the president’s power. It would also remind Americans that there is a right way to change our Constitution and that it is not only possible, but preferable, to every other extra-legal course of action.

Kyle Sammin is a lawyer from Pennsylvania, a senior contributor to The Federalist, and the co-host of the Conservative Minds podcast. Read some of his other writing at his website, or follow him on Twitter at @KyleSammin.

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