Presidential pardon power and its abuse

[NWRatCon]

The issue of pardons has come up in a variety of threads, mostly involving Hunter Biden, and regarding Jan 6 rioters. I have strong opinions about the purpose and extent of Presidential pardon power, but I thought a separate thread just discussing the power and extend itself would be appropriate. This seems like the right forum for the discussion.

I'll start with two things: First, the pardon power of the Constitution is vested specifically in the Executive; second, the power, though plenary, can be abused and the basis for impeachment.

The power is created in Article II, Section 2 of the United States Constitution. "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." states that the President has the authority to “grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

"The United States Supreme Court has interpreted this power as “plenary,” meaning that is considerably broad and not generally subject to congressional modification. 1

In both Ex parte Garland (1866) and United States v. Klein (1871), the Court ruled that legislation could not restrict the president’s pardon power. 2

The origins of the pardon power in the United States Constitution can be found in English history, known previously as the “prerogative of mercy.” It first appeared during the reign of King Ine of Wessex in the seventh century. Although abuses of the pardon power increased over time, leading to limitations on it, the pardon power persisted through the American colonial period. Alexander Hamilton introduced the concept of a pardon power at the Constitutional Convention. There was debate about whether Congress should have a role in the pardon power, with the Senate approving presidential pardons. Delegates also debated whether treason should be excluded from pardonable offenses. However, the final result was an expansive power for the president in Article II, the strongest example of constitutional executive unilateralism. 3

The framers of the Constitution deliberately separated the judicial function of government from the pardon power, therefore obviating concern from English jurist William Blackstone that the power of judging and pardoning should not be delegated to the same person or entity. 4

They also reasoned that pardoning subordinates for treason would subject the president to threats of impeachment and removal from office."

White House History

 

[Cordelier]

If a President pardons himself to avoid criminal prosecution, that would constitute an obstruction of justice.

 

[verrip1]

If a President pardons himself to avoid criminal prosecution, that would constitute an obstruction of justice.

Source?

 

[NWRatCon]

From the same source:

"As decided in Ex Parte Garland (1866), presidents may issue pardons at any time after the commission of a federal offense, even before federal charges have been filed or a sentence has been imposed. 16 [That is the basis used for Hunter's pardon.]

Such was the case when Ford pardoned Nixon. There are other instances of presidents circumventing judicial processes in anticipation of legal action. [Emphasis mine] Abraham Lincoln issued preemptive pardons during the Civil War and so did Jimmy Carter, who pardoned Vietnam draft evaders who had not been charged for their actions.

It is unclear whether accepting a pardon is a legal admission of guilt. President Gerald Ford argued as such; he carried with him a quote from the Burdick v. United States (1915) decision that concluded a pardon “carries an imputation of guilt; acceptance a confession of it.” However, such statement was included in dicta, or legal commentary found within a judicial opinion that does not establish precedent. Other presidents have not shared Ford’s belief that a pardon’s acceptance signified guilt. For example, President George H.W. Bush pardoned former Secretary of Defense Caspar Weinberger and others involved in the Iran-Contra scandal because he felt they were innocent of wrongdoing; he claimed such individuals had fallen victim to “the criminalization of policy differences” and used the pardon power to correct legal judgments and prevent other errors from occurring. 17"

There are legitimate disagreements about whether Ford and Bush have the correct view of the issue. Frankly, I have been on both sides of that debate, and now feel that both Ford and Bush were wrong in their uses of the pardon power: Nixon should have been tried, and Weinberger's pardon was, in my view, unforgivable. The excuse that it was in the interest of justice was a cover for killing an investigation that was leading right back to Bush himself - in essence, pardon of a co-conspirator. (As Independent Counsel Walsh put it: “[The] pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office—deliberately abusing the public trust without consequence. Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens.” He concluded, “The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger.”) Trump, of course, took that behavior to a whole new level, pardoning several individuals who were acting on his behalf directly, and using the power to corruptly obstruct justice.

 

[NWRatCon]

If a President pardons himself to avoid criminal prosecution, that would constitute an obstruction of justice.

I don't believe that a President can pardon himself. The language, history, and function of a pardon precludes that, as the framers of the Constitution explicitly believed. The DoJ has so opined in Nixon's case:

"a president cannot pardon himself or herself due to the established legal precedent that no one may be a judge in his own case and the constitutional restriction that a president cannot issue a pardon in relation to impeachment. Richard Nixon did consider a self-pardon in 1974. At that time, the Justice Department produced a memorandum that concluded the president did not have the constitutional power to issue a self-pardon. 19" Ibid

 

[Cordelier]

Source?

18 US §1505 (emphasis added):

§1505. Obstruction of proceedings before departments, agencies, and committees​

Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress-

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

---

Presidents have the power to pardon under Article II §2 of the Constitution, and that power is absolute. I don't deny that. But they also have an Article II § 3 responsibility to see to "take Care that the Laws be faithfully executed". When they fail to take such care, then they are acting corruptly and thus subject to a 18 USC §1505 obstruction charge.

 

[NWRatCon]

18 US §1505 (emphasis added):

§1505. Obstruction of proceedings before departments, agencies, and committees​

Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress-

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

---

Presidents have the power to pardon under Article II §2 of the Constitution, and that power is absolute. I don't deny that. But they also have an Article II § 3 responsibility to see to "take Care that the Laws be faithfully executed". When they fail to take such care, then they are acting corruptly and thus subject to a 18 USC §1505 obstruction charge.

(Beat me to it!)

 

[Cordelier]

I don't believe that a President can pardon himself. The language, history, and function of a pardon precludes that, as the framers of the Constitution explicitly believed. The DoJ has so opined in Nixon's case:

"a president cannot pardon himself or herself due to the established legal precedent that no one may be a judge in his own case and the constitutional restriction that a president cannot issue a pardon in relation to impeachment. Richard Nixon did consider a self-pardon in 1974. At that time, the Justice Department produced a memorandum that concluded the president did not have the constitutional power to issue a self-pardon. 19" Ibid

Whether a President can or cannot pardon himself is an open question that is up to the Courts to decide. However, given the decision the Supreme Court handed down in Trump v. US, we have to presume that a Presidential self-pardon is allowable under the Article II §2 powers of the President.

However, my argument is that doing so would very probably constitute an obstruction of justice, given his Article II §3 responsibility to see to it "that the laws be faithfully executed." Moreover, since a President can only pardon past wrong-doings and not future ones, he couldn't pardon himself proactively for committing such an obstruction.

 

[eman623]

If a President pardons himself to avoid criminal prosecution, that would constitute an obstruction of justice.

No problem. He can just pardon himself for obstructing justice too. And pardon himself for pardoning himself for obstructing justice. Ultimately he can infinity pardon himself for everything.

 

[NWRatCon]

Whether a President can or cannot pardon himself is an open question that is up to the Courts to decide. However, given the decision the Supreme Court handed down in Trump v. US, we have to presume that a Presidential self-pardon is allowable under the Article II §2 powers of the President.

However, my argument is that doing so would very probably constitute an obstruction of justice, given his Article II §3 responsibility to see to it "that the laws be faithfully executed." Moreover, since a President can only pardon past wrong-doings and not future ones, he couldn't pardon himself proactively for committing such an obstruction.

I agree that the current SCOTUS is likely to pervert the Constitution to that end, given their previous perversion of the law and reason. It just flies in the face of the concept of pardons since they were invented. They have always been a grant to another, and explicitly not a prerogative reserved to oneself.

 

[verrip1]

(Beat me to it!)

So sorry that he beat you. If only the USSC hadn't already ruled that that cannot occur.

Too bad, so sad. Better luck nest time. No parting gifts, though.

 

[Cordelier]

No problem. He can just pardon himself for obstructing justice too. And pardon himself for pardoning himself for obstructing justice. Ultimately he can infinity pardon himself for everything.

He can only pardon himself for crimes he has already committed - the pardon power doesn't extend to crimes he (or anyone else) may commit in the future. See Ex Parte Garland 71 US (4 Wall.) 333 (1866).

 

[Cordelier]

I agree that the current SCOTUS is likely to pervert the Constitution to that end, given their previous perversion of the law and reason. It just flies in the face of the concept of pardons since they were invented. They have always been a grant to another, and explicitly not a prerogative reserved to oneself.

Agree with them or not, that's what they ruled, and so that's the law. Shake it off and play the ball where it lies.

 

[BirdinHand]

If a President pardons himself to avoid criminal prosecution, that would constitute an obstruction of justice.

To date, a POTUS has never attempted to pardon themselves and the Constitutionality of such hasn’t been tested - at least that’s my understanding.

 

[Cordelier]

To date, a POTUS has never attempted to pardon themselves and the Constitutionality of such hasn’t been tested - at least that’s my understanding.

True... but I'm thinking there's a pretty good likelihood of the Constitutionality of it being tested in the next few years, and given the Court's decision in Trump v. US, we should probably operate under the assumption that they'll allow it.

 

[NWRatCon]

Agree with them or not, that's what they ruled, and so that's the law. Shake it off and play the ball where it lies.

Well, they haven't ruled on that, so nothing to shake about yet.

 

[Cordelier]

Well, they haven't ruled on that, so nothing to shake about yet.

I've been doing a lot of shaking it off the last few years. Still in the game, though.

 

[NWRatCon]

I posted in another thread a point I'd like to put here. Sorry for cross-posting:

There is a legal distinction that has not been thoroughly addressed. It is, in fact, the distinction between an amnesty and a pardon. See, e.g., https://www.britannica.com/topic/amnesty; see also, https://constitution.congress.gov/browse/essay/artII-S2-C1-3-4-2/ALDE_00013320/ "As with other forms of clemency, amnesty may be partial or conditional.2 Among others, prominent examples of amnesty occurred during and after the Civil War and the Vietnam War. For instance, Presidents Abraham Lincoln and Andrew Johnson issued a series of proclamations offering and ultimately granting amnesty to those who participated in the Civil War on the side of the Confederacy,3 and the Supreme Court decided several cases addressing the implications of such amnesty for property seized by statute.4 Beyond the Civil War, a more recent historical example of amnesty came in the 1970s, when President Jimmy Carter granted amnesty to many who violated the Selective Service Act by evading the draft during the Vietnam War.5"

I intended to address this earlier, because amnesties tend to be of a like-situated group (as discussed above), whereas a pardon is more often for an individual, but that is not actually the distinction. Both can apply to either a group or an individual. Amnesties, rather, are prospective rather than retrospective (although after the act), and pardons can only really occur after the actual conviction. In Trump's case, he has been convicted (and, yes, he's already a felon for purposes of federal law, regardless of the sentence he receives). The same for Hunter Biden. He was convicted, so the pardon acts rather more like clemency than a pardon. In Nixon's case, he was - technically - granted an amnesty, rather than a pardon, but that is not the term or process Ford used, since it was specific to the individual.

Reasonable minds can differ, but I would argue that my analysis is correct, both historically and legally. It is one of the areas of law where I think terminology has been used sloppily.

 

[NWRatCon]

I've been doing a lot of shaking it off the last few years. Still in the game, though.

In my younger years, I did a LOT of studying of where the various Justices were on issues and how they might be influenced - reading the tea leaves, kinda thing. It was successful enough to predict and obtain a reversal of a precedent. The appointment of Scalia began a serious deterioration in the quality of their opinions. Thomas was an absolutely unqualified abomination, and it has gotten progressively worse. They are absolutely predictable, now, but not in a good way: Corporations win, government functionality loses; law enforcement wins, civil rights lose; religion wins, even when inapplicable, as long as it is Christian, as there is only "the one true god", even if most Christians wouldn't recognize their version; any policy by a Democrat loses, even if it was passed by a Republican, previously; money wins, and voters can **** themselves. If the Four Horsemen would have done it, the Six Charlatans will do it with less consistency but more vehemence. They are determined to write the 14th Amendment out of existence, obliterate the Civil Rights Acts, and return to the glory days of Plessy v. Ferguson. It is depressing to see how they have taken hacksaws to virtually every jurisprudential standard established since the Civil War. They don't even pretend to be subtle or honest about it. By far the least competent and most ideological bench in our nation's history.

 

[BirdinHand]

They are determined to write the 14th Amendment out of existence

This really does seem to be the direction that they are headed.

 

[Athanasius68]

18 US §1505 (emphasis added):

§1505. Obstruction of proceedings before departments, agencies, and committees​

Whoever, with intent to avoid, evade, prevent, or obstruct compliance, in whole or in part, with any civil investigative demand duly and properly made under the Antitrust Civil Process Act, willfully withholds, misrepresents, removes from any place, conceals, covers up, destroys, mutilates, alters, or by other means falsifies any documentary material, answers to written interrogatories, or oral testimony, which is the subject of such demand; or attempts to do so or solicits another to do so; or

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress-

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

---

Presidents have the power to pardon under Article II §2 of the Constitution, and that power is absolute. I don't deny that. But they also have an Article II § 3 responsibility to see to "take Care that the Laws be faithfully executed". When they fail to take such care, then they are acting corruptly and thus subject to a 18 USC §1505 obstruction charge.

So would the pardoning of H Biden from all possible crimes from 2014 be considered obstruction of justice?

 

[Cordelier]

So would the pardoning of H Biden from all possible crimes from 2014 be considered obstruction of justice?

It'd depend on the President's intent. If he was doing it to avoid his own prosecution, I'd say it would constitute obstruction. However, if that were the case, pardoning his son would have actually increased the legal jeopardy to himself, because now his son could be called to testify against him and not be able to plead the 5th in doing so.

The key word in 18 USC §1505 would be "corruptly". If the President has a corrupt reason for issuing the pardon, then it brings up the possibility of an obstruction charge.

 

[Athanasius68]

It'd depend on the President's intent. If he was doing it to avoid his own prosecution, I'd say it would constitute obstruction. However, if that were the case, pardoning his son would have actually increased the legal jeopardy to himself, because now his son could be called to testify against him and not be able to plead the 5th in doing so.

Oh, but if President Biden were to also pardon various people with knowledge of Burisma, the China deals etc, under the theory to protect them from a 'vengeful' Trump DOJ prosecution...

The key word in 18 USC §1505 would be "corruptly". If the President has a corrupt reason for issuing the pardon, then it brings up the possibility of an obstruction charge.

I don't see how the constitutional power of the president, to issue pardons, could run afoul of a Congressional statute.
It doesn't apply.

 

[Cordelier]

Oh, but if President Biden were to also pardon various people with knowledge of Burisma, the China deals etc, under the theory to protect them from a 'vengeful' Trump DOJ prosecution...


I don't see how the constitutional power of the president, to issue pardons, could run afoul of a Congressional statute.
It doesn't apply.

If every -any - conspiracy theory alleged against Biden were true, then he'd be one of the greatest criminal masterminds in world history.

Article II §3 of the Constitution - [The President] "shall take Care that the Laws be faithfully executed". That's how the President's pardon power could run afoul of a Congressional statute.

 

[The AntiDonald]

Whether a President can or cannot pardon himself is an open question that is up to the Courts to decide. However, given the decision the Supreme Court handed down in Trump v. US, we have to presume that a Presidential self-pardon is allowable under the Article II §2 powers of the President.

However, my argument is that doing so would very probably constitute an obstruction of justice, given his Article II §3 responsibility to see to it "that the laws be faithfully executed." Moreover, since a President can only pardon past wrong-doings and not future ones, he couldn't pardon himself proactively for committing such an obstruction.

If all that were to firmly hold true, Trump would have been charged and jailed the moment he walked out of the WH in 2020, after the Mueller probe. He obstructed justice multiple times and Mueller said so. The problem is we now have political leaders that truly believe they are above the law. And with the recent SC immunity ruling, it now appears to be true.

I feel like the US really blew a chance to right the ship over the past 4 years. The more we overlook this kind of stuff, the worse it will get.

So, what now?