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

[Brickjectivity]

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.

Indeed. Congress does, unless of course the president captures all of the congressmen. Why would a president do that? They might do it if the congress was threatening to have the president thrown into jail the moment the term was over.

 

[9-10ths_Penguin]

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

Sure, but I think we're talking about what one of my friends calls a "corner case" i.e. the intersection of more than one edge case).

... and it still represents a limitation on the President's ability to abuse their power to pardon, since in the case you describe, the President would refrain from abusing it in a way that would end with impeachment until impeachment is no longer a reasonably expected prospect.

 

[Brickjectivity]

Say what? How does that relate to the topic here? Are you saying that with an "unlimited" pardon power (as the Court commented in Garland ) it allows the President to "terminate lives"?

He can pardon himself. He can, for example, kill me and then immediately pardon himself legally. He's the commander in chief of the armed forces. As long as he is not impeached by congress I have no recourse but to die.

 

[9-10ths_Penguin]

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.

But regardless of what rights are violated, the Constitution gives the President the power to pardon. The Constitution doesn't limit itself.

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.

I'm not sure of that: "intended future crimes" wouldn't be "offenses" at the time that the pardon is issued, so I would think that the pardon would be invalid.

That's a very different situation than Ford & Nixon: Ford's pardon of Nixon still dealt with actions that had already happened, even if Nixon hadn't been indicted for them.

How would issuing a pardon for an "intended future crime" work, anyway? Doesn't a pardon have to have some specifics to it? If a pardon was issued to allow someone to commit a particular crime "on or about" a particular date on a particular day, it seems it would generally be pretty easy to guard against them actually pulling it off.

 

[Nakosis]

Say what? What does that second sentence mean?

Sorry, foretell the future.

What "check" are you referring to?

A check on the justice system as inferred by Hamilton -

He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.'' Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. 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. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

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?

See previous quote

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

I'll assume you misunderstood me, or it it your understanding the congress has no involvement in this process?

 

[Revoltingest]

He can pardon himself. He can, for example, kill me and then immediately pardon himself legally. He's the commander in chief of the armed forces. As long as he is not impeached by congress I have no recourse but to die.

Then we'd best not elect kitten murderers.

 

[Brickjectivity]

Then we'd best not elect kitten murderers.

I know, right?

 

[Misunderstood]

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 will respond to this over the weekend. It will take more time to respond to than my eyes feel they can stay open.

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

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

Yeeeeaaaa, there is a lot of inconsistency here that I do not understand and only have my opinions of why some of the things happened the way they did.

I was just a teen when this was going on and remember watching some of it on the news, and hearing my parents discussing it. The last time I have discussed this was during the Clinton impeachment. So my memories are from when I was very young, and the last discussion I had was many years ago. So what I state next may have many flaws.

As I remember Nixon resigned before he was impeached, after he resigned the impeachment was dropped. After this Ford pardoned him of his crimes.

I feel a case could have been made that a President can not pardon another President of charges brought during an impeachment proceeding. But,it did happen and as far as I remember it was not contested.

I am not sure why this was not contested except that everyone wanted it to be over and did not want to look petty. But it does not mean that what happened would have stood if someone contested it.

I will try to put together a better response, over the weekend. But, do you feel that the Nixon Pardon would have stood if contested?

 

[Nous]

I feel a case could have been made that a President can not pardon another President of charges brought during an impeachment proceeding. But,it did happen and as far as I remember it was not contested.

I am not sure why this was not contested except that everyone wanted it to be over and did not want to look petty. But it does not mean that what happened would have stood if someone contested it.

I will try to put together a better response, over the weekend. But, do you feel that the Nixon Pardon would have stood if contested?

Ford's preemptive pardon of Nixon had a very bad smell to it. Of course, it wasn't a pardon for impeachment, but for any criminal charges that might have been brought against Nixon. It's natural to suspect that it was a case of quid pro quo, but there was undoubtedly no possible evidence for that. Nixon had surely figured out by that time that he needed to turn off that tape recorder in the Oval Office. Nevertheless, the Court had not, and still has not, held that the President has the power of preemptive pardons. Preemptive pardons do not seem to be consistent with the rationale for the pardon power that Hamilton articulated in the Federalist Papers. Preemptive pardons create that slippery slope into the possibility of really bad pardons--e.g., where the President pardons someone for a crime that he hasn't committed yet, so that he can go and and commit the crime with impunity. I just can't imagine that the majority of Americans would agree that such a pardon should be allowable. I can't imagine that the Court would not find a reason, e.g., in the Federalist Papers or elsewhere, to hold such a pardon unconstitutional.

Anyway, I think I've seen surveys where Ford's pardon of Nixon was perhaps a factor in Ford not being elected in 1976. Ford was one of those old-fashioned moderate Republicans, and I think he generally enjoyed a good reputation in Congress. However, he definitely engineered the investigation of JFK's assassination to get the result he wanted. He and Betty had some beautiful children.

 

[Nous]

A check on the justice system as inferred by Hamilton -

He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.'' Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. 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. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

Well, it isn't beyond the purview of the Court to review the constitutionality of acts of the President. The Court routinely decides the constitutionality of executive orders as well as rules and regulations implemented by executive departments.

I'll assume you misunderstood me, or it it your understanding the congress has no involvement in this process?

No, Congress is involved one way or another in each of the methods for amending the Constitution.

 

[Nakosis]

Well, it isn't beyond the purview of the Court to review the constitutionality of acts of the President. The Court routinely decides the constitutionality of executive orders as well as rules and regulations implemented by executive departments.

Sure, but with regard to pardones. I'm not aware of the Courts challenging this.

No, Congress is involved one way or another in each of the methods for amending the Constitution.

I assumed Congress involvement to be understood without going into details.

 

[Nous]

Sure, but with regard to pardones. I'm not aware of the Courts challenging this.

Courts don't challenge the constitutionality of anything. They decide whether a challenged law, Congressional or Presidential act is constitutional.

 

[Nakosis]

Courts don't challenge the constitutionality of anything. They decide whether a challenged law, Congressional or Presidential act is constitutional.

Lawyers do which I see as part of the courts system but ok. This is far away from any point I was trying to make.

 

[Nous]

Lawyers do which I see as part of the courts system but ok. This is far away from any point I was trying to make.

Well, hopefully closer to what you were trying to say: it seems to me that you may have an odd idea about the separation of powers doctrine on which our (et al.) system of government is based, and which is often referred to as creating "checks and balances" between the three branches of government. It is the obligation of the Court to decide "what the law is" (Marbury v. Madison), which includes what acts a President and Congress can perpetrate.

As a well-know example of acts that are not specifically articulated in the Constitution, the case of US v. Nixon concerned the Special Prosecutor's subpoena duces tecum for specific documents and tapes from President Nixon. Nixon had refused to comply with that subpoena, claiming executive privilege. A unanimous Court held that the President certainly has and may exercise an executive privilege to protect the privacy of certain documents, the content of conversations and other materials pertaining to his/her official duties, but that Nixon had to comply with that particular subpoena. And,fortunately Nixon exhibited the decorum that the current President might not, and complied with the subpoena. I guarantee every Justice on the Court, every judge on the DC court, every person in the Special Prosecutor's office, and hundreds of thousands of other people were worried about the possibility that Nixon would just refuse to comply with the court order to turn over the documents and tapes. I know that the topmost levels of the prosecutor's office were trying to develop contingency plans in case Nixon refused to comply. They were mulling over the possibility that, if he were to refuse to comply, whether the prosecutor should (somehow) get an order for the police or the military to (somehow) storm the White House to (somehow) force Nixon to turn over the documents and tapes. Thank God Nixon was an attorney and respected the law enough to comply with the court order.

 

[Milton Platt]

The Constitution itself merely provides the President with the power to issue pardons in cases of federal crimes (Art. II, Sec. 2, Cl. 1: “The President . . . shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment”), but does not elucidate any purpose. However, in Federalist Papers Hamilton engages in a relatively lengthy discussion of the issue of the pardon power, devoting almost all of #74 to it, though much of this entails an attempt to justify providing the President, rather than the legislature or other body, with this power. The rationale that Hamilton offers for this seems rather strained at best. He wrote:

[The President is] authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT.'' Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. 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. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary.

On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.​

The Avalon Project : Federalist No 74

In #69, Hamilton briefly and superficially considers the Presidential pardon power in a single paragraph:

The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited "to levying war upon the United States, and adhering to their enemies, giving them aid and comfort''; and that by the laws of New York it is confined within similar bounds.​

The Avalon Project : Federalist No 69

In a blog post for Brookings Institute, professor D. W. Buffa notes an exchange between George Mason and James Madison on the President's power to pardon. See: The pardon power and original intent

In the 1866 case of Ex Parte Garland, the Court heard a challenge to an 1862 law that required all federal public servants to take an oath affirming that they had never taken up arms against the US and had never given aid to persons or supported any government that had engaged in any sort of hostilities toward the US. An attorney, Mr. Garland, who had been previously admitted to practice in federal court abandoned his practice during the Civil War and was elected a Senator from Arkansas after the state's secession. At the close of the Civil War, Garland received a full pardon from President Johnson, and sought to resume his practice in federal court, but he obviously could not take the prescribed oath. He argued that the law was unconstitutional. The Court ruled in his favor, and, among its dicta, the Court noted that the Presidential pardon power “is unlimited” with the exception of cases of impeachment, that the power extends to every offense, and is intended to relieve the person who receives a full pardon of all punishments for all crimes he has committed or may be charged with committing. But, again, all of these comments were just dicta, not an element of the ratio decidendi, indeed, not relevant to the question the Court was answering.

The Court has never had the opportunity to determine whether or not a particular pardon by the President is constitutional. Yet, the Court generally treats actions by the President analogously to acts of Congress, and one can easily imagine how a pardon could be unconstitutional by infringing a fundamental right (e.g., by pardoning all white people convicted of murdering African Americans). Moreover, in attempt to determine the constitutionality of a governmental act, the Court routinely seeks to understand what is or was the purpose of a provision in the Constitution. To cite just a few examples from a single decision, First National Bank v. Bellotti:

As the Court said in Mills v. Alabama, 384 U. S. 214, 218 (1966), "there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs."

"[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. `. . . the liberty of the press is no greater and no less . . .' than the liberty of every citizen of the Republic." Pennekamp v. Florida, 328 U. S. 331, 364 (1946) (Frankfurter, J., concurring).

The First Amendment, in particular, serves significant societal interests. The proper question therefore is not whether corporations "have" First Amendment rights and, if so, whether they are coextensive with those of natural persons. Instead, the question must be whether § 8 abridges expression that the First Amendment was meant to protect.​

So my questions here are multiple and open-ended. What is the purpose of the President's pardon power? Is it to rescue a wrongly convicted person being punished for a crime? Is it to prevent the President's friends, allies or family members from being tried and/or punished for crimes regardless of their guilt?

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?

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

Is there any reason why the Court should not look beyond the four corners of the Constitution in order to discern the purpose of the President's power to grant pardons?

Good discussion.......
I don’t have a problem with the president having the power to pardon, but it needs to be much better defined.