Looking more closely at what Nadler is saying, it seems to me that there are two distinct elements. One is the suggestion that the President not be allowed to pardon members of his/her own administration. This, I suspect, is the bit that Josh is leery of - I imagine that his thinking is that in a country where the prosecution is highly politicized (as in the US), the benefits of having the President able to overturn politically-driven prosecutions may outweigh the benefits. This, I think can be argued either way. But I can't see any very good argument against the second, admittedly more tentative element of Nadler's proposal - that the President's power to pardon be restricted during his/her final months in office.
It seems to me that what we want out of a pardon is to allow someone with no political accountability the opportunity to undo injustices. A lot of people get convicted in this country because there was a prosecutor with the public breathing down his neck to DO SOMETHING.
Empirically, it is an open question whether the pardon power is used that way or not. But if we're going to ensure it's only going to be used when the voters can express their wrath, then we might as well not have the pardon power at all, it seems to me.
What about Marc Rich? Or Nixon? Taking the last first, that pardon would have passed both of Jerry Nadler's tests--Nixon was not Ford's subordinate, or in his administration, nor were any of the other conspirators. Pardoning Nixon may have been a bad idea, but I tend to think not--the country would not have benefitted from a lengthy trial, especially since I think it very likely that the defense would have managed to get quite a bit of testimony on Johnson's behavior, which I've heard credibly argued, at least equalled, and inspired, Nixon's own. Arguably, the reason the Democrats made so little fuss is that they knew they could not further destroy Nixon's name without also destroying Johnson and the Great Society.
As for Marc Rich . . . okay, so a terrible, horrible, no good, very bad idea. But on a social level, so what? Are rich people going to commit more tax fraud because they might, after more than a decade of living abroad as a fugitive, be able to donate a chunk to the Presidential library and thus secure a pardon? What about this cries out for remedy beyond recrimination?
Color me naïve, but what does LBJ have to do with Watergate?
Presidential pardons are, I agree, a good idea. There are certainly cases where clemency by diktat of an actual physical human being, which can't be used as any kind of precedent, is the just and right solution to those hard problems that often make bad law.
Pardoning people like Mark Rich? That's got nothing much to do with justice and everything to do with doing a favor for a crony. It shows President Clinton to be a man with no honor, but we kind of knew that anyway.
How about secretly allowing some people in the administration to conduct illegal torture and then pardon them against any future prosecution?
How about allowing political operatives to use executive powers to pursue political vendettas against opponents, using executive privilege to block subpoenas and then pardoning them against any future accountability?
How about secretly allowing some people in the administration to conduct illegal torture and then pardon them against any future prosecution?
Does anyone know if this is actually possible? Can you really grant a pardon for acts not yet committed, or even for prosecutions not yet commenced? Any precedent for it?
I was following politics very closely during the Vietnam/Watergate years, and while I believe that LBJ was guilty of some impeachable offenses (especially the use of phony info to deceive the country into expanded war at the time of the Tonkin Resolution), his actions had no relation to Watergate. Megan's post is the very first time I have heard anyone suggest a possible political connection between LBJ's misdeeds and Democratic responses to Watergate.
It is my understanding that a big part of the rationale for the presidential pardon was to prevent exactly this type of partisan criminalization of politics so as to make it "safe" to relinquish power at the end of your term. A big part of the fall of the Roman Republic was just this sort of tit-for-tat jailing of fallen political figures. And yes, it can happen here.
And how many times can I say "a big part"? I hate multitasking.
Sorry
Color me naïve, but what does LBJ have to do with Watergate?
Watergate was an attempt by the Nixon administration to illegally bug and wiretap a political opponent. Johnson had done the same thing to Nixon; this would likely have come out during a trial.
None of the illegal activities of Nixon's "dirty tricks" operatives were unique or original. Many, if not most, of his predecessors had done the same things.
You're overlooking Iran-Contra, where pardons cut short prosecutions that could have shed further light on how foreign policy was unconstitutionally privatized and outsourced during the Reagan administration.
Leaving that aside, here's another proposed reform: Require that the president state specific federal crimes that he believes the pardonee is guilty of and for which the pardon is being granted. Thus, for instance, Bush could not pre-emptively pardon the architects of his torture or illegal wiretapping policies by just waving his hand, but would have to finger the culprits as torturers and illegal wiretappers. It would be interesting to see how many of them would want the pardons on those terms.
.....Indeed, some would probably accept the pardons (it beats being prosecuted), but would then issue statements along the lines of, "If I did those things, it's only because Bush himself approved of them and/or ordered me to." Thus, pardons that had to be specified in this way would not become self-serving tools of presidential coverup; they would SERVE instead of subvert the cause of getting at the truth of what happened.
Well, historically speaking Hamilton justifies the pardon power in Federalist 74:
"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."
The only dispute at the time was if the President should also be given the power to pardon in cases of treason, e.g., such that he could conspire to take over the government with his henchmen and then pardon everyone if their scheme did not succeed.
Most of the arguments here sound in structure, in the division of power between and the proper roles of the branches of our government. Two important point to keep in mind on this point:
1) The executive has similar authority on the front-end of most prosecutions in the form of prosecutorial discretion, and even arguably on the back-end should he choose not to enforce certain jail terms. At some point he would of course be accused of not fulfilling his Constitutional duty to see that the laws be faithfully executed. Even then, though, the answers would likely be political, e.g., to impeach him or to vote him out of office, rather than legal.
2) Likewise, the power to pardon is one of the key executive powers in the American system. It resides in almost every Governor or at least executive branch in the nation. Our legal system has quite a lot of give in the joints, and we deal with it overall by giving the executive branch this power. Indeed, it is such a core power that it is arguable if you could actually strip this power from the President by amendment - yes, we could do it legally, but at some point you would alter the core division of powers so much that it would no longer be proper to speak as our existing under the same Constitution. It is unlikely that the pardon power actually reaches this point - think more the power of the purse of the legislature or the Commander-in-Chief power - but it is notable that, structurally, this is almost universally an executive power.
Likewise, that point runs quite contra to what Megan says - such powers invested in the executive are generally explicitly intended to be political, not apolitical. The early pardons as well as the debates in the federalist papers reflect this - they envisioned and later granted pardons for political crimes like leading rebellions or treason. Of course, this power has been expanded, but it still stands as part of our legal system that we allow the executive to grant political absolution for legal crimes.
Should this be changed? That is always the question.
One argument is that we should abolish the power because we have deviated from historical practice. This has obviously occurred to some degree. However, it is notable that the most controversial pardon cases - e.g., Nixon or President Bush possibly pardoning members of his administration for war crimes - sound at least somewhat in the types of political cases which the pardon powers were arguably designed to mitigate. Arguments for historical deviance rely on, for example, Mark Rich, but as Megan points out, such cases are not the ones which drive the calls for reform.
Regardless, it could be that structurally, prudentially, or ethically (in the sense of upholding our people's Constitutional ethos), we should abandon the pardon power. I am yet to read a proposal that is completely persuasive, and it is something with which I do not overly concern myself given the difficulties of Constitutional amendment, but it is possible that a good argument to amend the pardon powers can be made.
Rob --- I'm too lazy to look this up but if memory serves, the President cannot pardon people for crimes they haven't yet committed---that is, in fact, virtually the only substantive constraint on the pardon power. The President can pardon people for federal crimes that are not being investigated, for undisclosed federal crimes, for federal crimes the person may or may not have committed, and even for broad categories of federal crimes. But no crime can be expunged by the pardon if it post-dates the pardon. (I'm not sure what happens if some elements of the crime pre-date the pardon and some post-date it; I would assume the pardon doesn't apply then.)
There was some talk that Mark Rich was using his commodity trading firm to funnel intelligence to the US relating to oil movement.
Since the Republicans would not have spent the last eight years treasonously calling attention to his pardon if this was true, and because since they have spent the last eight years in power and know if this was true, Mark Rich obviously was pardoned because he donated to the Clinton library or something.
Megan, you are an endless source of non sequiturial entertainment.