What Is the Purpose of the President's Pardon Power?

[Nous]

provides possible alliteration.

Thank you for noticing that. I wish I could claim a degree of cleverness for it, but I can't. I actually tried to avoid it.

 

[Nous]

One possibility....
Our criminal justice system is always moribund & often corrupt or incompetent.
The President is (supposed to be) a wise & honest guy (& a gal some day).
So the power to quickly make corrections is useful.

That's basically what Hamilton said. That doesn't imply that the power is or should be considered "unlimited" as the Court said in Garland.

 

[Audie]

For example, you know you have really screwed up if you are waiting on a Presidential pardon to begin with.

You think? Many a person has been unjustly accused or
convicted. (Milhouse excepted)

 

[Revoltingest]

That's basically what Hamilton said. That doesn't imply that the power is or should be considered "unlimited" as the Court said in Garland.

I suppose the limit would be impeachment power.
But that would fail near the end of a President's term.

 

[Nous]

Of course, the PP power can be abused, eg, Bill Clinton selling pardons.

Clinton actually sold them?

 

[Revoltingest]

Clinton actually sold them?

The Marc Rich pardon appears to be compensated.
Ref....
Bill Clinton pardon controversy - Wikipedia

I'm sure that there will be contrary opinions.

 

[Audie]

Thank you for noticing that. I wish I could claim a degree of cleverness for it, but I can't. I actually tried to avoid it.

I used to annoy my Mom by trying to alliterate every
sentence. It is not wise to be annoying her, in case you
run across her and get the idea.

 

[Nous]

Does the purpose include the power to pardon someone so that the person can commit a crime (e.g., theft) in the future with impunity?

I wouldn't think so. Unless one can foretell the, why act on what is essentially unknown.

Say what? What does that second sentence mean?

Is there any reason why the Court should not entertain cases challenging the constitutionality of a pardon?

Kind of defeats the purpose of such a check. This would basically be a check on the judicial system that it could nullify. So basically no check at all.

What "check" are you referring to?

The Court reviews the constitutionality of Presidential acts (e.g., Executive Orders) just as it does Congressional Acts. So why should the President's pardon power be beyond the review of the Court?

For the courts no, for congress, who holds the power to make changes to the law, even the constitution, yes.

No, Congress can't change the Constitution. It has to be amended by the prescribed process.

 

[Nous]

Like many of the powers of the US president, it's directly inherited from the powers of the British monarch, which still exist. It was based on the royal duty to uphold justice, even if the system had failed.

All true. Yet, that still doesn't tell us when a pardon might be unconstitutional.

 

[Audie]

The Marc Rich pardon appears to be compensated.
Ref....
Bill Clinton pardon controversy - Wikipedia

Clinton-what a lovable rascal. Poor Hillary missed
the lovable part.

Here is a Chinese joke about Clinton.

Two very important men go to see Crinton,
Mr X and Mr. Y.
He invites them to dinner.
But then he has to go take a phone call.

While he is gone, X decides to put a White House
plate in his pocket for a sovenier.

Y see that, and thinks he will get one too

But just as he is putting it in his pocket,
Crinton comes back and sees him!

So Y says, "Look, I am teaching X a
magic trick, I put this in my pocket, and,
it appears in his!"

 

[Revoltingest]

Clinton-what a lovable rascal. Poor Hillary missed
the lovable part.

Here is a Chinese joke about Clinton.

Two very important men go to see Crinton,
Mr X and Mr. Y.
He invites them to dinner.
But then he has to go take a phone call.

While he is gone, X decides to put a White House
plate in his pocket for a sovenier.

Y see that, and thinks he will get one too

But just as he is putting it in his pocket,
Crinton comes back and sees him!

So Y says, "Look, I am teaching X a
magic trick, I put this in my pocket, and,
it appears in his!"

I retaliate with an Americastanian joke....
A friend of Ms. Lewinsky asked her how her
new boyfriend compared to President Clinton.
She replied, "Close, but no cigar."

 

[Nous]

I'm not sure if this would apply in the US, but in Canada, we've had Supreme Court rulings that address this point: here, the ruling is that all parts of the Constitution are of equal status and no part of the Constitution can nullify another part.

In that case, the question was whether our rules for succession of the monarchy (which prohibit Catholics from becoming the monarch of Canada) violate the Charter of Rights and Freedoms (which mandates equality of religion). The decision there was that because the rules of succession were on equal status to the Charter, they were not subject to the Charter.

I'm not sure to what extent American courts have ruled on whether one part of the US Constitution can nullify or limit another part.

What you describe is no different than for the US. The provision in the Constitution granting the President the pardon power does not itself conflict with any other provision in the Constitution. But one can easily imagine an instance of the President using the power of pardon so that it violates someone's fundamental rights or so that preemptively protects a person's efforts to commit a criminal act. Those and other sorts of uses of the pardon power would not seem to be what the Framers intended as the purpose of the pardon power.

 

[9-10ths_Penguin]

All true. Yet, that still doesn't tell us when a pardon might be unconstitutional.

Doesn't the text of the Constitution do that?

"he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Based on that, a presidential reprive or pardon is unconstitutional if:

- it's for an offense not against the United States, or
- it's for an impeachment.

No?

 

[9-10ths_Penguin]

What you describe is no different than for the US. The provision in the Constitution granting the President the pardon power does not itself conflict with any other provision in the Constitution. But one can easily imagine an instance of the President using the power of pardon so that it violates someone's fundamental rights or so that preemptively protects a person's efforts to commit a criminal act.

That's right.

Those and other sorts of uses of the pardon power would not seem to be what the Framers intended as the purpose of the pardon power.

Quite possibly, but that doesn't negate the power. And the Constitution does provide mechanisms to remove a president who is acting improperly, along with a requirement to go to the people every 4 years for a new mandate by election.

There are plenty of points in the Constitution where the President's powers are limited in various ways, so it stands to reason that if the authors of the Constitution wanted to limit the President's powers on this issue, they could have.

 

[Nous]

I do not feel it was meant to give Presidential friends and family a free pass. But, it does give the President that power. I feel it was meant to give the President power to protect himself by protecting those around him from certain branches of the government if they were to turn against him.

Well, why do you "feel" the power "was meant to give the President power to protect himself by protecting those around him"? The fact is (as the Court has ruled), a pardon does not expunge a person's record of conviction, and, more than that, a pardon removes a person's Fifth Amendment right against self-incrimination. Therefore a pardoned person under oath is obligated to truthfully answer questions about what s/he may know about the President's wrongdoing.

I don't think so, I think a pardon is only for a crime that a person has already been convicted of.

Well, Ford pardoned Nixon for crimes that he had not been indicted for.

Is there something that would make you think it would cover any future crime?

There is the Ford-Nixon pardon, and the comment in Garland about the power being "unlimited".

(BTW, thank you for answering all the questions I asked!)

 

[Nous]

Also I have been watching a Tony Robinson show about History. He commented that the first emperor of Rome was a proconsul who knew that when his period of control ended he would have to face a lot of legal trouble. This made him roll the dice and seek to be a permanent dictator. That got me to thinking that the purpose of the pardon in the USA may not be spelled out in the courts and left open ended so that a lame duck president will not feel pressed to roll the dice like that proconsul who became emperor. The president can pardon themselves and their cronies before leaving office. They can also make deals like Nixon did. They can be tyrannical with no legal repercussions after they leave office. After all the most important duty of a US president is that they leave office after their term is complete. So perhaps if the courts were to begin limiting the pardon they might also start creating reasons for presidents to seize power?

But how would a President "seize power" when his/her time in office has run out? Congress controls the purse strings, including for the military.

 

[Nous]

The first thing Ford did after assuming office was to pardon Nixon. Clinton abused the power, don't remember either Bush issuing a number of pardons, Obama issued none, he commuted some sentences.

G. W. Bush issued a few pardons and commuted some sentences, some which might be kind of controversial: List of people pardoned by George W. Bush - Wikipedia E.g., Libby's commutation.

Henry Lee Lucas' commutation when Bush was Governor might raise raise some eyebrows.

 

[Nous]

The Marc Rich pardon appears to be compensated.
Ref....
Bill Clinton pardon controversy - Wikipedia

I'm sure that there will be contrary opinions.

Gee whiz! Thank you. I guess I just never came across info on Rich's contributions.

Yeah, Clinton did some questionable pardons.

 

[Nous]

Doesn't the text of the Constitution do that?

"he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Based on that, a presidential reprive or pardon is unconstitutional if:

- it's for an offense not against the United States, or
- it's for an impeachment.

No?

The Constitution does specify those conditions. However, the Court decides what the law is, and that includes whether a Congressional or Executive act violates someone rights. And, further, merely proscribing pardons for impeachment and non-federal crimes still leaves the President the ability to issue preemptive pardons so that a person can perpetrate an intended future crime. I guarantee that pardon would be reviewed by the Court.

 

[Nous]

Quite possibly, but that doesn't negate the power. And the Constitution does provide mechanisms to remove a president who is acting improperly, along with a requirement to go to the people every 4 years for a new mandate by election.

But if the President issues a preemptive pardon during his last minute in office, impeachment is off the table.