The reform of the pardon MUST be paired with some means of insulating prosecutorial decisions. This is certainly valuable in holding the current administration accountable but there also must be protection from retribution with every swing of the political pendulum. How can we restructure the DoJ to insure its independence?
There’s no way to do this effectively. Any oversight body could be corrupted by the same political forces that corrupts what it’s overseeing. Take the impeachment and removal power. It was designed to rein in presidents like Trump, but it only works if Congress uses it. You could make it easier to remove presidents like Trump for good reasons, but then you'd also make it easier to remove presidents like Clinton for bad reasons. No system of check and balances can rein in a whole political party that wants to be corrupt.
I think one of the easiest tweaks to the pardon power would be to suspend it from October 1 of a presidential election year until the inauguration the following year. Almost all of the worst pardons occur during that period anyway.
Another tweak would be that Congress can override an act of clemency by a 2/3rds vote in both houses within 90 days of its issuance.
And finally, I would make all presidents ineligible for executive clemency for any federal crime, no matter who is doing the pardoning, whether the crime is official or unofficial, or when the crime takes place. Anyone who has ever wielded the pardon power cannot benefit from it, including vice presidents who temporarily assume the powers of the presidency, eg Dick Cheney and Kamala Harris
Excellent article once again, Brian. Any thoughts on combining an effort for a 28th Amendment of reforming the presidential pardon power with a 29th Amendment on age limits/term limits/mandatory cognitive tests as eligibility requirement (perhaps grandfathering in current elected officials so as to have less pushback)? After the Biden fiasco, it's apparent that the age issue is an animating topic for voters so adding this to the pardon power amendment might give it some more momentum. There was a 2023 Pew Research poll found that 79% of Americans support maximum age limits for elected officials. I would think this should cover president, VP, members of Congress, and judges at a minimum.
On the issue of amending the Constitution, I think reviving section 3 of the 14th Amendment would get us part way there, helping with the Congressional part of the process. Yes, SCOTUS tried to kill section 3, but Article I says "Each House shall be the Judge of the . . . Qualifications of its own Members." A Democratic majority in each house of Congress could take the position that (1) oath-breaking insurrectionists are not qualified under section 3 of the 14th Amendment, (2) that the 2/3 requirement to expel a member of Congress doesn't apply to determining qualifications and, even if it once did, it was eliminated by section 3, and (3) that the the issue is nonjusticiable in the courts because Constitution expressly says Congress determines the qualifications of its members. It wouldn't be totally out of line with the coercive way the Reconstruction Amendments were ratified . . .
I'm probably a dead-ender who comes across as a tin-foil-hat guy, but I continue to think SCOTUS's ruling on section 3 of the 14th Amendment is so dumb and so atextual that it may not be the end of the story. And I know this could be a dangerous door to open.
The reference to state prosecutors reminds me of a question I've yet to see someone answer: What are the contours of state prosecutors' ability to pursue charges for illegal acts of federal officials? I know there are various immunities at play. The high profile stuff would be things like bribery and self-dealing and other abuses of power, but what about plain old false statements in proceedings in federal court? I assume there's a law professor out there whose work touches on this. (And yes, I know this is a huge can of worms to open.)
A related idea- where there aren’t already state laws, perhaps states could creatively find ways to bring trumpist crimes under state law. For example, if someone kidnaps people as a federal agent or conspires to kidnap people, would that kidnapping have to be legal in order to be immune from state prosecution? Maybe this example doesn’t work, but if an action is illegal under federal law, and if simply being a federal agent doing their job, doesn’t shield people from prosecution on the state level for the act, then bringing more illegal acts under state law could provide another avenue for prosecution if, as you say, state prosecutors are willing to do it.
I think the Democrats would also benefit from framing any pardons he grants as presumptively void, on the legal theory that any pardon for crimes undertaken in furtherance of the President's own crimes would functionally render the executive above the law. I see no reason to cede the ground that the pardon power is virtually limitless - to treat it as such would undermine the intent of many other provisions of the Constitution.
The reform of the pardon MUST be paired with some means of insulating prosecutorial decisions. This is certainly valuable in holding the current administration accountable but there also must be protection from retribution with every swing of the political pendulum. How can we restructure the DoJ to insure its independence?
I used to think I would suffer from brain fog for the rest of my life..."𝐛𝐮𝐭" this changed everything.... https://t.co/qSJzLeg50z
There’s no way to do this effectively. Any oversight body could be corrupted by the same political forces that corrupts what it’s overseeing. Take the impeachment and removal power. It was designed to rein in presidents like Trump, but it only works if Congress uses it. You could make it easier to remove presidents like Trump for good reasons, but then you'd also make it easier to remove presidents like Clinton for bad reasons. No system of check and balances can rein in a whole political party that wants to be corrupt.
I think one of the easiest tweaks to the pardon power would be to suspend it from October 1 of a presidential election year until the inauguration the following year. Almost all of the worst pardons occur during that period anyway.
Another tweak would be that Congress can override an act of clemency by a 2/3rds vote in both houses within 90 days of its issuance.
And finally, I would make all presidents ineligible for executive clemency for any federal crime, no matter who is doing the pardoning, whether the crime is official or unofficial, or when the crime takes place. Anyone who has ever wielded the pardon power cannot benefit from it, including vice presidents who temporarily assume the powers of the presidency, eg Dick Cheney and Kamala Harris
I used to think I would suffer from brain fog for the rest of my life..."𝐛𝐮𝐭" this changed everything.... https://t.co/qSJzLeg50z
Excellent article once again, Brian. Any thoughts on combining an effort for a 28th Amendment of reforming the presidential pardon power with a 29th Amendment on age limits/term limits/mandatory cognitive tests as eligibility requirement (perhaps grandfathering in current elected officials so as to have less pushback)? After the Biden fiasco, it's apparent that the age issue is an animating topic for voters so adding this to the pardon power amendment might give it some more momentum. There was a 2023 Pew Research poll found that 79% of Americans support maximum age limits for elected officials. I would think this should cover president, VP, members of Congress, and judges at a minimum.
On the issue of amending the Constitution, I think reviving section 3 of the 14th Amendment would get us part way there, helping with the Congressional part of the process. Yes, SCOTUS tried to kill section 3, but Article I says "Each House shall be the Judge of the . . . Qualifications of its own Members." A Democratic majority in each house of Congress could take the position that (1) oath-breaking insurrectionists are not qualified under section 3 of the 14th Amendment, (2) that the 2/3 requirement to expel a member of Congress doesn't apply to determining qualifications and, even if it once did, it was eliminated by section 3, and (3) that the the issue is nonjusticiable in the courts because Constitution expressly says Congress determines the qualifications of its members. It wouldn't be totally out of line with the coercive way the Reconstruction Amendments were ratified . . .
I'm probably a dead-ender who comes across as a tin-foil-hat guy, but I continue to think SCOTUS's ruling on section 3 of the 14th Amendment is so dumb and so atextual that it may not be the end of the story. And I know this could be a dangerous door to open.
The reference to state prosecutors reminds me of a question I've yet to see someone answer: What are the contours of state prosecutors' ability to pursue charges for illegal acts of federal officials? I know there are various immunities at play. The high profile stuff would be things like bribery and self-dealing and other abuses of power, but what about plain old false statements in proceedings in federal court? I assume there's a law professor out there whose work touches on this. (And yes, I know this is a huge can of worms to open.)
A related idea- where there aren’t already state laws, perhaps states could creatively find ways to bring trumpist crimes under state law. For example, if someone kidnaps people as a federal agent or conspires to kidnap people, would that kidnapping have to be legal in order to be immune from state prosecution? Maybe this example doesn’t work, but if an action is illegal under federal law, and if simply being a federal agent doing their job, doesn’t shield people from prosecution on the state level for the act, then bringing more illegal acts under state law could provide another avenue for prosecution if, as you say, state prosecutors are willing to do it.
I have put Trump's corrupt pardons on Facebook two or three times already. I will keep doing it.
I think the Democrats would also benefit from framing any pardons he grants as presumptively void, on the legal theory that any pardon for crimes undertaken in furtherance of the President's own crimes would functionally render the executive above the law. I see no reason to cede the ground that the pardon power is virtually limitless - to treat it as such would undermine the intent of many other provisions of the Constitution.
Chris Murphy is speaking out in great detail about Trump’s accumulating instances of corruption.
Brilliant comments, very impressed/ Articles run too long for me, but hey/
Does Rep Steve Cohen's proposed amendment fit the bill here? How about we get county parties to endorse it? My county meets tomorrow.