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Nadler Plans Constitutional Amendment To Curtail Pardon Power
Rep. Jerrold Nadler (D-NY) plans to introduce a Constitutional amendment in the coming months to impose limits on the president's near absolute pardon power, he told an NYU-Harper's forum on justice in the post-Bush era Thursday night.
Nadler, who two weeks ago introduced a resolution demanding President Bush not issue 'pre-emptive' pardons of officials in his administration, said his amendment would bar presidents from pardoning members of their own administration for official acts. The president would retain the power to pardon the secretary of state for, say, beating his wife, Nadler said, but not for actions taken in an official capacity.
Nadler added he is considering adding a section limiting the pardon power in the final months of a presidential administration.
"This is something the Congressman thinks is very important, and it's a priority for him," Nadler spokesman Ilan Kayatsky told TPMmuckraker today. Kayatsky said Nadler's office is still doing planning and research on how to structure the amendment.
The president's pardon power is drawn from Article II, Section II of the Constitution, which states in part:
[The president] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
Nadler's amendment would have to be passed by a two-thirds vote of both the Senate and the House and then be ratified by three-fourths of the states.
Josh
Zachary
I'm not sure that restricting Presidents from issuing a pardon in the later part of their last terms is a particularly good idea. Such a restriction might chill justified, but politically risky, pardons that the President is putting off to avoid taking the heat mid-term. But, I do certainly see the sense in deny the President the ability to pardon members of the Administration for illegal acts committed under the cover of official duties.
One other thing I'd add would be to require a conviction before a pardon is issued. This would close off the use of preemptive pardons to thwart potentially embarrassing prosecutions.
December 5, 2008 11:32 AM | Reply | Permalink
^C^V I agree with you vis not precluding the late-term abrogations (ok it's not quite the right word but it's evocative).
In fact I cosign your whole post.
I just wanted to use the late-term phrase ;-)
December 5, 2008 11:52 AM | Reply | Permalink
I would also expand the group of ineligible public officials to members of the other two branches, for example, anyone associated with Jack Abramoff. And I wholeheartedly agree that pre-emptive pardons should be prohibited outright.
December 5, 2008 1:10 PM | Reply | Permalink
Seems like a publicity stunt to me.
December 5, 2008 11:38 AM | Reply | Permalink
You obviously are oblivious to recent history. Pardons have been issued by Presidents of both parties for highly corrupt reasons, most blatantly by Bush41 to save his own ass. This should have been fixed long ago.
December 5, 2008 1:42 PM | Reply | Permalink
No, Steaming Pile (a very apt moniker, by the way) I am not ignorant to the abuse of the Constitutional pardon authority by Bush, Clinton, et al.
Nor am I ignorant to the difficulty of effecting a Constitutional amendment, particularly relative to such an obscure matter as the presidential pardon authority, thus my comment.
Now go grunt out another steaming pile.
December 5, 2008 3:57 PM | Reply | Permalink
Chris, these comments aren't worthy of you.
Requiring that the President not pardon crimes he/she has comissioned is a 'publicity stunt?'
And the very 'obscure' area of Presidential pardon is crying out for sunlight.
December 5, 2008 9:21 PM | Reply | Permalink
No. It is a worthy ideal. But not a practical one.
To think that such a constitutional amendment will ultimately be enacted, particularly given the current situation in the country, I think, is ridiculous.
December 5, 2008 10:30 PM | Reply | Permalink
Seems like a publicity stunt to me.
Probably a bit more like just keeping his Upper West Side Manhattan constituency happy. I was a constituent for a couple years, his newsletters were always filled with keeping the grand liberal fighting spirit kind of things. Although there may be a grain of truth to publicity stunt kind of thinking, more gracious to call it P.R., I guess. Strikes me as starting the ball rolling on the outrage factor before Bush ever puts pen to paper, so that perhaps he hesitates about executing the more egregious pardons he might be considering (if so, strikes me as sort of futile, but then he's a "dreamer." :-))
BTW, I don't mean to denigrate him, I think he is a honest, good Congressperson. Was just trying to get across that he is an ultra-liberal and so is most of his district, he serves their needs well.
December 5, 2008 4:11 PM | Reply | Permalink
Thank you, artappraiser, for reminding me again of what the non-'ultra-liberal'- wing of the Democratic Party is like- the Party of Joe Lieberman and friends.
December 5, 2008 9:04 PM | Reply | Permalink
Not that it isn't a nice thought in the context of this Administration, but isn't this explicitly unconstitutional?
December 5, 2008 11:39 AM | Reply | Permalink
Please disregard. Jesus, talk about shooting from the hip.
December 5, 2008 11:40 AM | Reply | Permalink
you know how long it takes to amend the constitution? if he was serious about this, he shouldn't have waited until 2 months to go until the new administration.
December 5, 2008 11:58 AM | Reply | Permalink
Better late than never. And since I am sure you voted Democratic, it seems a rich hypocrisy to be scolding a Dem politician for dithering on these matters.
I personally am thrilled SOME elected Dem besides the reviled Kucinich is proposing ways to curtail the President's power.
December 5, 2008 12:13 PM | Reply | Permalink
Just to be clear, I mean "the President" in a way that does not apply solely to the present occupant.
December 5, 2008 12:25 PM | Reply | Permalink
I hope you were being facetious about the "reviled" Kucinich.
Greatest congressional Democrat in my biased opinion!
December 6, 2008 12:46 AM | Reply | Permalink
"Reviled" was half-facetious, but not expressive of my own opinion at all.
I wonder if Kucinich doesn't generate cognitive dissonance in people, because people are obliged to dismiss him as impractical. I wonder if that, itself, is a highly naive proposition.
December 6, 2008 1:39 AM | Reply | Permalink
The great thing about a constitutional amendment is that you can make it retroactive if you want. You can "unpardon" the people who were pardoned by Bush.
Sure, it "violates" the ex post facto clause of the Constitution, but the whole point of an amendment is that you can override other provisions of the constitution.
December 5, 2008 12:31 PM | Reply | Permalink
I think the motive should not be to 'unpardon' people- the ex post facto rule is integral to protecting people from abuses, in fact even more than the pardon power is ripe for abusing.
There is no principled reason, is there, for positing a conflict between this proposed amendment and the ex post facto clause? One should not override the other.
December 5, 2008 12:39 PM | Reply | Permalink
No, this was planned for a long time, and this is exactly the time to bring it up.
The real concern here is to prevent Bush from issuing blanket pardons. If an ammendment had been raised earlier it would have fallen and the issue would be considered to be dead. Equally, if Bush does leave office without pardoning his cabinet members the issue will probably be forgotten.
But if, as is rather more likely, Bush does pardon members of his own cabinet for crimes committed in office the Nadler ammendment is all but certain to pass the Congress. Democrats will vote for it to repudiate Bush and Republicans will vote for it to repudiate Cheney and to repudiate Clinton's pardons and to prevent Obama doing the same at the end of his term.
So bringing up the proposal now is actually timely. Any earlier and it would be a campaign stunt.
At this particular moment the threat of the ammendment might well lower the probability of pardons being issued. Bush can hardly want his legacy to be that Congress modified the constitution to reduce the power of the President and making him more accountable. Cheney definitely does not want that, it would be the ultimate defeat for him.
December 5, 2008 1:15 PM | Reply | Permalink
Hallam, I completely agree that this is actually very well-timed.
However, I'm not at all sold on your supposition that Bush or Cheney are somehow so concerned about their legacy, or that they would hesitate even a moment to issue CYA pardons. I fully expect such, accompanied by spin about how it was "necessary to protect them from unfair Democrat prosecution/persecution", etc etc. Respect for the law has never been an apparent priority for this bunch, and the discovery of repeated and willful lawbreaking would surprise no one. Coupled with a practical allergy to accountability, I find it difficult to imagine any other course of action.
If my prognostications prove inaccurate in these next couple of months, I will be only too happy to be wrong.
December 5, 2008 2:02 PM | Reply | Permalink
Well, it stands a greater chance of success now, especially since it probably wouldn't go out to the state legislatures until next year, when non-stupid people have a greater advantage. New York, for example, has just wrested control of its state senate from the Republicans for the first time in 40 years.
December 5, 2008 1:44 PM | Reply | Permalink
Wow, you may have thought about that, well, months ago? Good luck getting a Constitutional amendment passed in a month.
Good luck getting one passed at all for that matter.
Idiot..
December 5, 2008 12:05 PM | Reply | Permalink
It doesn't have to be in a month.
This had ZERO chance of passage until Jan 2007. Since then it still had no chance.
So, Bush was going to be able to TRY it, no matter what. The comment above that a failure would have doomed it forever is pretty much true.
This is something that is abused every time a President leaves office and doesn't have to worry so much about what people think.
This is for the future.
HOWEVER ---- See my post below. (It will take a bit of time to type it... it is now 4:14pm CST. It should be done by 5:00pm)
December 5, 2008 5:16 PM | Reply | Permalink
The pardon power should be limited in the same way throughout a President's term, so as to amend the Constitution minimally but to get rid of the most noxious portion, viz. the President's power to order his or her underlings to commit unlawful acts, then to pardon them for it.
Limiting the pardon power adds a more usable instrument to Congress' armory than the unwieldy and underused impeachment power.Without adding some new weapons of its own, Addington's triumph over the First Branch will be assured.
December 5, 2008 12:08 PM | Reply | Permalink
As I read the piece above, the proposed amendment does two things:
(1) A president may never pardon his own underlings for actions taken in their official capacity.
(2) A president will have only limited pardoning abilities in his final months of office.
December 5, 2008 12:38 PM | Reply | Permalink
Actually, it implies a limit to the scope of Executive Priviledge, because it means that Congress will be able to reliably distinguish between 'official' and 'unofficial' acts of the Executive, in order for this Amendment to have any meaning at all.
December 5, 2008 12:55 PM | Reply | Permalink
...the President's power to order his or her underlings to commit unlawful acts, then to pardon them for it...
Sorry to point this out, but the Congress has the power to impeach a President in a case such as this. If Congress fails to do so, then they have no cause to complain if pardons are given out to protect the guilty.
December 5, 2008 1:53 PM | Reply | Permalink
This isn't really a supportable argument. Impeachment and the subsequent removal from office is meaningless if the President is already on their way out and if they don't care about their legacy or public opinion. It would be a huge waste of time. So it sounds to me that you're basically arguing that a Congress that fails to embark upon a meaningless and wasteful act has no grounds for complaint. Ridiculous.
The issue here is the power of a President to use preemptive pardons to shield those who broke the law on the President's behalf. If that isn't essentially a power for the Executive to be above the law if they so choose, I don't know what is.
December 5, 2008 2:40 PM | Reply | Permalink
I would also be wary of creating new Constitutional tools to fix one specific problem. There is a tendency to rush the process thru and thereby leaving loopholes and gaps in the legalize which can be exploited later that would go against the original intent of the legislation.
December 5, 2008 1:58 PM | Reply | Permalink
I agree wholeheartedly. Left unchecked, the current interpretation of the Executive's ability to preemptively pardon essentially provides a way to immunize any lawbreaking done on behalf of the President. Which in turn defeats the notion that no one is above the law.
December 5, 2008 2:29 PM | Reply | Permalink
Nice. But isn't this a little ironic coming from Nadler, who was the prime mover behind Clinton's still-controversial last-minute Weather Underground pardons? Admittedly, Nadler's bomber buddies would fall outside the amendment you say he's framing, but how much can the Clintons enjoy hearing those ill-advised pardons mentioned as Jerry pushes his amendment? And how much will Barack Obama enjoy hearing his AG Eric Holder's name repeatedly come up for his part in the Weather Underground pardons and others (principally Marc Rich)?
I'm all for the amendment, but it could have had cleaner sponsor.
Good reporting.
The Constant Weader at www.RealityChex.com
December 5, 2008 12:12 PM | Reply | Permalink
Waste of time. No possible way this could ever get passed. And what's the point of limiting pardons during the last few months - the only effet would be start the pardon process a few months earlier. Really stupid.
December 5, 2008 12:14 PM | Reply | Permalink
"And how much will Barack Obama enjoy hearing his AG Eric Holder's name repeatedly come up for his part in the Weather Underground pardons and others (principally Marc Rich)?"
Why should their feelings matter?
And if Nadler himself is soiled, well, there are few clean hands among the Democrats, who have put party over principle in a way that is truly nauseating to any honest observer.(Well, to this observer, and maybe a few others.)
December 5, 2008 12:20 PM | Reply | Permalink
I'm thinking a better limitation is that you cannot pre-emptively pardon anyone. You can pardon a person AFTER they've been convicted - but not before.
Then at least the public gets the trial and the information that would come along with it. Last gasp immunizations of friends would be impossible.
A president could still pardon an underling, but only if that person was sentenced during the president's administration.
A pardon is one thing - but granting pre-emptive immunity is quite another.
December 5, 2008 12:31 PM | Reply | Permalink
But Ford pre-pardoned Nixon. Remember?
December 5, 2008 1:48 PM | Reply | Permalink
Is there any compelling reason for a president to be able to pardon anyone? Especially for crimes against the country? I really can't think of such a reason. So, why not just amend the Constitution to remove that power? Anything else just sets up hurdles that a conniver like Bush would have no trouble getting over. Remember, this is a president who managed to suspend Habeus Corpus, suspend the prohibition against warrantless searches, conducted a torture program in spite of US laws against it, used signing statements rather than vetoes, changed US policy to permit aggressive acts of war based on faked intelligence, etc.
December 5, 2008 12:37 PM | Reply | Permalink
Bu$h was able to suspend Habeus Corpus because the Congress allowed him to do so. Congress could have stopped Bu$h on everything - they have the power to bring the Executive to its' knees. They didn't because they let the Party game the system.
December 5, 2008 1:47 PM | Reply | Permalink
This is an apple impersonating and orange.
Congress has the ability to drag the Executive Branch and all bit players before it and settle any and all questionable activities. The reugs refused to inquire into questionable activities and Bu$h took full advantage of their negligence.
Rather than go after the President's pardoning powers, they should reorganize their own Houses first.
So before Congress attempts to curtail the pardoning powers of the executive, they should first make sure they're doing their jobs. That way, Presidential pardons won't amount to much concern.
December 5, 2008 12:49 PM | Reply | Permalink
It is obvious that of their own free will, Congress will do as little as possible to uphold the public interest. If they are bound by this proposed Amendment to enforce limits on the pardon power, then they will be forced to do a little bit more....
December 5, 2008 1:01 PM | Reply | Permalink
yeah, but using an Amendment as a trump card instead of enforcing their Legislative powers of oversight is a trivial misuse of Constitutional powers.
December 5, 2008 1:37 PM | Reply | Permalink
As opposed to the non-trivial DISuse of legislative powers (what are those, by the way, and why do we need them, when we have SIGNING STATEMENTS?).
December 5, 2008 9:08 PM | Reply | Permalink
I agree with Josh that changing the constitution is a dangerous game (though certainly has been warranted many times in the past). In particular, I believe that an earlier amendment got us into this problem in the first place.
The 22nd Amendment (limiting the maximum number presidential terms to two) should be repealed. Doing so would give sitting presidents more incentive to behave in their second term and make the possibility of impeachment a plausible threat for misbehavior even post re-election.
It would also give some incentives to congress to actually assert themselves against a rogue executive because the guy could stick around forever if it doesn't take action.
December 5, 2008 1:36 PM | Reply | Permalink
I'll vote for that change! No Presidential term limits means Congress has to do their job.
December 5, 2008 1:43 PM | Reply | Permalink
Boy, I'm with you on that. The constitutionally-imposed lame-duck status while reducing the president's political power, also reduces his accountability to Congress, as you point out. Or her. The lame duck status, though, really renders a second term problematic in that the president no longer retains the power to keep his folks in line with the threat or promise of a 3rd term. Even Truman kept them guessing, to his benefit. And we can speculate that without the two-term limit, we may have bee spared *both* Bushes, if Reagan and Clinton had run again.
I'm afraid it won't happen, because the trend seems to be toward more term limits, but I would love to see it.
December 5, 2008 1:54 PM | Reply | Permalink
The whole point about term-limiting our President is to keep him from abusing his power to remain in office indefinitely. Your idea that a "rogue executive" that doesn't have to worry term-limits would somehow provide Congress with more incentive to assert their own powers simply doesn't hold. Imagine if said rogue executive used his powers to dig up blackmail material on Congress members? Or rig our electoral process? Or is simply protected from effective Congressional oversight through resistance by members of his own party? The fact that we have term limits means that it becomes very difficult to retain power indefinitely without first removing the term limits themselves, which itself would be an act impossible to hide.
It's true that our Congress has been a limp noodle. But the true underlying problem is that party loyalty currently trumps congressional obligations. Repealing the 22nd Amendment isn't going to change that at all. Better would be to change away from a plurality rule voting method (so we can escape Duverger's law) and adopt another method (instant runoff voting comes to mind, although there are others). By opening the door wider for politicians who are independent of party, we reduce the power of the existing two major parties. And with the pressures from within each political party being less driving, other pressures would provide a correspondingly greater motivational force.
December 5, 2008 5:03 PM | Reply | Permalink
This is a thorny constitutional issue that may not need "fixing". Here's why: Let's say, just assuming, that a president and his henchmen, errrr, I mean administration officials, had done a whole bunch of illegal things during the president's term. Then, in the last duck-days of the administration, the president issues a blanket pardon to himself and all of his co-criminals forgiving any and all illegal actions taken during his administration. The result is that we then have a presidency that need not comply with the laws at any time, what I call "simple-minded" avoidance of duty. There is good authority that this type of pardon might be unconstitutional as infringing on the separation of powers, etc. We might not need to "fix" anything by way of constitutional amendment. Well maybe the ERA would be nice, but not for the pardon power.
December 5, 2008 1:49 PM | Reply | Permalink
I would support a constitutional amendment that prevented any pardons from being given within a certain time, maybe 4 months, before a potential end of a sitting president's term. Basically, no pardons between Sept 20th of a presidential election year and the new swearing in on January 20.
This would force the sitting president to issue all pardons prior to the election. Then the voters can make the choice about whether to support that president or party for reelection. This would at least make the parties accountable for the actions of a lame duck president.
I think this would be much easier and acceptable to people than trying to specify which acts a president has the power to pardon, which is just asking for litigation.
I also do not support removing term limits, as I believe it helps prevent a president from using his power to corrupt the government in order to gain a permanent advantage for reelection; remember the Republicans tried to do very similar by using any branch of the government they could to help elect a permanent Republican majority. What would we have seen them do if Bush could have run for another term? Maybe Bush would have ordered the invasion of Iran? Just throwing it out there.
December 5, 2008 3:33 PM | Reply | Permalink
Before any passive aggressive closing the barn door after the pigs have flown away, Congress should exercise the so called powers it has under the Constitution we have right now.
Remember the subpoena power Congress used to have? Turns out it was a big bluff all along. It certainly means nothing to would be "Justice" Harriet Meiers, and fellow cronies.
December 5, 2008 3:40 PM | Reply | Permalink
I think this amendment is a good idea. However, it would have to be worded very carefully in order to avoid a particular loophole, namely, what happened with Nixon and Ford. The language could be extended to say that the president may not pardon anyone with whom he/she served in a prior administration, not just the current one. And make clear that that prior service does not have to have been as president (as, for example, Ford was vice president at the time).
December 5, 2008 3:40 PM | Reply | Permalink
Why not just forbid preemptive pardons--that is, don't place any temporal or "official capacity" restrictions, just make it so that a President can't pardon someone for an offense before they have actually been convicted of it. This makes good sense, will curb the excesses, and has a higher probability of enactment.
December 5, 2008 7:58 PM | Reply | Permalink
A question of logic - can a person be pardoned if he has not been convicted? An act of crime can not be pardoned. Can Bushes pardons be challenged in court?
December 5, 2008 8:27 PM | Reply | Permalink
How about impeachment?
December 6, 2008 10:45 AM | Reply | Permalink
Rep. Nadler could get some legislation passed (particulary after 20 Jan) that would do some good, even without a constitutional amendment.
For example, what is to keep Bush from signing back-dated pardons after his terms ends?
Well, it should be a requirement that pardons are entered promptly in the Federal Register, to prove that they are issued legally. This would include an instruction to the federal courts that if a pardon is to be considered, it must be in the Fed.Reg. to prove validity.
And just put in a time limit, that all "issued but pending" pardons must be registered within 30 days of the passage of the law. The law can be passed after Bush leaves office, so no veto.
What does this do? It eliminates "secret" pardons, or pardons held just in case some prior criminal activity comes to light.
Given how Bush has operated over the past 8 years, expect shenanigans.
BTW, pardons prior to conviction, and for large unnamed groups, have a long history: after the Whisky Rebellion, after the Civil War, Draft dodgers and resistors from WWII and Vietnam. I'd say that those are actually good uses for pardons.
December 7, 2008 1:35 AM | Reply | Permalink
"pardons prior to conviction, and for large unnamed groups, have a long history: after the Whisky Rebellion, after the Civil War, Draft dodgers and resistors from WWII and Vietnam. I'd say that those are actually good uses for pardons."
They certainly are. And they would fall outside the scope of Nadler's proposed amendment.
In fact, if you go through history, you will find that Nadler's plan would have left the worthwhile pardons in place, while ridding us of the most egregious (Ford's pardon of Nixon, HWBush's pardon of Elliott Abrams and co.), which is a desideratum of good legislation.
December 7, 2008 6:37 AM | Reply | Permalink