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Nine Thoughts on the Pardon Power, Including Self-Pardons
by
Elwood Dowd
Community
(This content is not subject to review by Daily Kos staff prior to publication.)
Saturday, Jul. 22, 2017
Saturday, Jul. 22, 2017
at
4:12:33am PDT
If the goal had simply been to provide an opportunity for leniency, a pardon authority could have been placed by the Founders within the judicial branch. Allowing the President or the Governor to issues pardons is instead part of the balance among the three branches of government: the power is there as a safety valve in case the judiciary and the legislature become dangerously dominant and uncontrolled. (Terry McAuliffe's use of the pardon power to restore voting rights is a great example of this.)
From that perspective, it is entirely consistent that the President can use the pardon power to protect the administration itself from judicial attacks. A rogue judiciary is exactly what is designed to challenge.
Yes, that makes the pardon power subject to abuse. That's generally true of all the mechanisms we have to balance the three branches against each other. Vetoing a water bill to get cooperation on a highway bill, cutting off funds to an existing program, overturning a law as unConstitutional: each of these powers can be used in ways that some will find abusive. In each case the remedy is political, not legal.
A lot of commonly cited wisdom about pardons just doesn't hold up to scrutiny. The notion that accepting a pardon is an admission of guilt is one example. Jerry Ford thought Nixon had admitted guilt by accepting a pardon, but that really doesn't wash. First, there is no formal acceptance or rejection by the pardoned person until and unless s/he is taken to court. Until then the pardoned person can remain silent on the subject. Nixon wasn't prosecuted; he never had to formally accept the pardon. Second, Ford gave Nixon such an enormously broad pardon, that Nixon could have denied guilt for Watergate-related crimes but accepted the pardon in case he had (for example) improperly filed his taxes.
Some legal scholars claim that pardoning oneself is not allowed because of the principle that "no one shall be his own judge." This also doesn't seem to hold up. We have examples of violations of that principle elsewhere, for example our reliance on the individual Supreme Court Justice to recuse himself/herself if there is a conflict of interest. That isn't pretty, but the alternative (of a separate body with authority to force recusal) is probably worse. The same thing with the President being his own judge regarding a self-pardon. Further, the principle is broader anyway: no judge would sit in judgment of his spouse or child or sibling, yet the President can clearly pardon them. (Clinton pardoned his brother.) And once again: to view the pardon power as a judicial exercise is flat-out wrong: the power
overrides
the judicial ruling.
Another scholar argues using linguistics. To pardon is to forgive; one forgives other people, not oneself; hence, the word "pardon" cannot apply to an attempt to excuse one's own actions. But
of course
one can forgive oneself: it's crucial for daily life. Beyond that, the Constitution recognizes different roles for the same person: the President acts differently as Commander in Chief that s/he does as the boss of the Attorney General. It seems entirely reasonable for the President as arbiter of pardons to issue one to the President's actions in a different role.
More to the point, prohibiting self-pardons would cripple the pardon as a tool for resisting rogue judicial and legislative reach. If the Founders had intended to set such an important limit, I believe they would have said so explicitly.
Historically, people don't seem to continue or resume political careers after being pardoned -- not because of legal barriers, but because of the political culture. It's hard to measure that: there are so many other factors that could lead someone to not try to (for example) run for office or seek appointment again, including health. But it seems plausible that a pardon carries an inextinguishable taint.
The notion that the pardon can actually open up an investigation by forcing testimony from the pardonee -- who can no longer claim a Fifth Amendment privilege -- doesn't seem to me to have a lot of historical support. It sounds good in theory, but I'm not aware of examples where it has played out that way. The pardonee can instead take all the blame, shielding others, or at least unpardoned others: unless there is independent proof of another culprit's guilt (in which case you didn't need the testimony), things may end there. Plus, poor memory will come into play.