A modest proposal reining in the accelerating arms race in issuance of presidential pardons and commutations—a constitutional vestige of Seventh Century England
What if Trump proposed it? :) Angling for the "transparency" label and shouting that it's necessary to protect the country from another Biden. One can argue that such a rule would have made many of Biden's pardons and commutations impossible (or politically catastrophic to Democrats), whereas such a rule would mostly have altered the timing of Trump's edicts (e.g., pardon most J6 defendants on Day 1. String the others out over time.) Not predicting this would happen, but i wouldn't shock me. Would Democrats resist such a ju-jitsu move?
I'm trying to think what could go wrong with this and not really coming up with anything. The pardons still stand, it's up to public pressure to induce having them withdrawn. I'm sorry that this seems to be necessary, but this is where we are today. .. You covered some of this; I wonder if this was discussed in the Federalist Papers, though perhaps you are already drawing on those. Thanks.
Your idea is unique (and interesting), for sure -- what I meant to wonder about was how much the pardon power itself was discussed in the Federalist Papers.
The advantage of this proposal is simplicity; other proposals that seek to limit the actual pardon power are likely to run into objections of varying validity. Since pardons are for violations of federal criminal laws passed by the House and Senate what about a requirement for "public notice as well as notice to the Speaker of the House of Representatives and the Senate Majority Leader of intent to grant a pardon or commutation of sentence 90 days from the date of the notice?" (The Speaker of the House is mentioned in the Constitution, the "Senate Majority Leader" is not, nor are political parties). Some wordsmithing here might be helpful.
Thanks! I'll leave those particulars to the lawyers, but they make sense. Maybe to the President of the Senate (VP) or President Pro Tem, rather than Majority Leader. Or to whomever treaties and such are sent.
While intriguing there is a downside and that is if there is a particularly repugnant person who was wrongly convicted of a federal crime the 90 day announcement would make the pardon more like a popularity contest. Even not nice people can be wrongfully convicted. That doesn’t make the conviction any less right. I think there is much wrong with the system of pardons but sometimes a change can be worse. As far as Kushner is concerned he served his time before the pardon. The pardon remove the fact that he was a felon. Fair or not he served his time. Many of the J6ers did the same. The issue with the violent ones is that the prosecution accused some of violence and asked for terror enhancements without allowing full Brady disclosure. Some clearly should not have been pardoned. How do you separate them in a timely manner so that those who were not violent continue to suffer. I think Jonathan Turley is correct in calling the Government response Government rage. While not excusing the violent perpetrators.
Yes, there will always be some downsides. The question is whether they exceed the upsides.
(1) Are there actual examples of the "particularly repugnant person" in clemency history, or is that just some theoretical contingency?
(2) I understand that Kushner served his time and has done some good deeds. But how many people are in similar situations--equally compelling--and don't happen to be the father-in-law of the president's daughter? With a 90-day rule, perhaps Trump would have proposed Kushner for clemency earlier in his term and taken the political hit for it. In such a case, it wouldn't come as a bolt from the blue and fait accompli.
(3) Your J6 points are well-taken, but again, is their situation unique among federal prisoners? And, given the machinery that has churned out so many executive orders so quickly, I suspect they could have separated the nonviolent from the possibly violent cases before Inauguration Day without too heavy a lift.
(4) And as for those wrongful conviction possibilities, I wonder whether it is possible to establish by mere statute a special Clemency Court--a separate appeals court whose sole job is to consider cases recommended for consideration by the President (and perhaps by Congressional recommendation, as well). I presume such a court could have the power to void or alter convictions.
Preemptive pardon is utterly egregious, according to something deep in my bones.
I hereby pardon you for saying that and for any future comments you might make.
😂
Voting against a 90-day comment period sounds (pardon the expression) unpardonable…
:)
Love it but no sitting R Member of Congress would propose while Trump is in office. Perhaps could be proposed in Trump’s final year.
What if Trump proposed it? :) Angling for the "transparency" label and shouting that it's necessary to protect the country from another Biden. One can argue that such a rule would have made many of Biden's pardons and commutations impossible (or politically catastrophic to Democrats), whereas such a rule would mostly have altered the timing of Trump's edicts (e.g., pardon most J6 defendants on Day 1. String the others out over time.) Not predicting this would happen, but i wouldn't shock me. Would Democrats resist such a ju-jitsu move?
Thoughtful as usual.
Thanks!
What an elegant idea...
Thanks!
I'm trying to think what could go wrong with this and not really coming up with anything. The pardons still stand, it's up to public pressure to induce having them withdrawn. I'm sorry that this seems to be necessary, but this is where we are today. .. You covered some of this; I wonder if this was discussed in the Federalist Papers, though perhaps you are already drawing on those. Thanks.
Nope, not drawing on anything. Just an idea that popped into my head. No idea whether the Founders considered this.
Your idea is unique (and interesting), for sure -- what I meant to wonder about was how much the pardon power itself was discussed in the Federalist Papers.
Thanks! Yeah, I knew what you meant. I just figured I’d let others look it up. :)
The advantage of this proposal is simplicity; other proposals that seek to limit the actual pardon power are likely to run into objections of varying validity. Since pardons are for violations of federal criminal laws passed by the House and Senate what about a requirement for "public notice as well as notice to the Speaker of the House of Representatives and the Senate Majority Leader of intent to grant a pardon or commutation of sentence 90 days from the date of the notice?" (The Speaker of the House is mentioned in the Constitution, the "Senate Majority Leader" is not, nor are political parties). Some wordsmithing here might be helpful.
Thanks! I'll leave those particulars to the lawyers, but they make sense. Maybe to the President of the Senate (VP) or President Pro Tem, rather than Majority Leader. Or to whomever treaties and such are sent.
While intriguing there is a downside and that is if there is a particularly repugnant person who was wrongly convicted of a federal crime the 90 day announcement would make the pardon more like a popularity contest. Even not nice people can be wrongfully convicted. That doesn’t make the conviction any less right. I think there is much wrong with the system of pardons but sometimes a change can be worse. As far as Kushner is concerned he served his time before the pardon. The pardon remove the fact that he was a felon. Fair or not he served his time. Many of the J6ers did the same. The issue with the violent ones is that the prosecution accused some of violence and asked for terror enhancements without allowing full Brady disclosure. Some clearly should not have been pardoned. How do you separate them in a timely manner so that those who were not violent continue to suffer. I think Jonathan Turley is correct in calling the Government response Government rage. While not excusing the violent perpetrators.
Yes, there will always be some downsides. The question is whether they exceed the upsides.
(1) Are there actual examples of the "particularly repugnant person" in clemency history, or is that just some theoretical contingency?
(2) I understand that Kushner served his time and has done some good deeds. But how many people are in similar situations--equally compelling--and don't happen to be the father-in-law of the president's daughter? With a 90-day rule, perhaps Trump would have proposed Kushner for clemency earlier in his term and taken the political hit for it. In such a case, it wouldn't come as a bolt from the blue and fait accompli.
(3) Your J6 points are well-taken, but again, is their situation unique among federal prisoners? And, given the machinery that has churned out so many executive orders so quickly, I suspect they could have separated the nonviolent from the possibly violent cases before Inauguration Day without too heavy a lift.
(4) And as for those wrongful conviction possibilities, I wonder whether it is possible to establish by mere statute a special Clemency Court--a separate appeals court whose sole job is to consider cases recommended for consideration by the President (and perhaps by Congressional recommendation, as well). I presume such a court could have the power to void or alter convictions.