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After Biden's pardons and now this, it's pretty clear that the President's unilateral ability to grant clemency to anyone ought to be dramatically reduced, if not removed entirely. Literally every president in my lifetime has abused this power, and the expected guardrails (voters will punish bad pardons) mostly don't work.
There's nothing to stop a president from goading political violence or corruption, and then pardoning afterwards (or hell, even before!). It's a highly abuseable, very obvious point of failure.
The POTUS has no way of knowing if someone is under investigation or will be investigated, so the preemptive pardon covers this before the statute of limitations runs out.
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Counter-point- this is not a bug, but a feature, of governmental design.
The point of American governmental powers is not as a tool for angelic figures, but as a check against other branches. That it can be used to block investigations / prosecutions of 'legitimate' crimes is a merit, not evidence of failure, because 'I'm just cracking down on corruption' is an archetypical basis for political purges of political opponents. The checks and balances of government are far more concerned about the later- the abuse of judicial processes- than they are the former- the ability of guilty people to get off free.
The Pardon-power is an executive check against both the legislature (which could legislate unreasonable laws that none could fail to break, and then use said breaks arbitrarily to disqualify), but just as importantly the judiciary (whose power revolves around process conclusions). Just from a system design, if you want to remove a check on the executive against other branches, you are implicitly either replacing it with a new- and as to date not norms-established power- against the other branches, or you are refusing to replace it. Either of these are destablizing changes to a system.
In turn, the guardrails against veto abuse aren't just voters (note the lame-duck rush as opposed to the years before Biden lost the election), but inter-party and inter-branch politics. If the President, Congress, and Judiciary are on board with the same abuse, there's no particular limit (or need) for the veto regardless. The challenge comes when the President and Judiciary are at odds, and Congress is the wavering party. If Congress supports the President, the Judiciary is at a loss regardless, and the veto is just a means by which it is done. But if Congress opposes the President, the limitation on the veto is the limitation of the President's relationship with Congress- the president needs Congressional support for other things, and even outgoing presidents have political considerations.
In this week's context, the Pardon worked twice as a balancing function limiting the capacity to carry out and sustain politically motivated prosecutions. That mitigation can be a way to limit future politically-motivated prosecutions (Trump again Biden; more historically, the Nixon pardon), and mitigate past politically-motivated prosecutions (Biden against Jan 6 rioters, when the Jan 6 cases are contrasted against BLM / 2016 rioters). That you can view both of these (or neither of these) as 'actual' crimes does not change the politically charged nature of the prosecution (or potential prosecution).
By contrast, limiting the ability of a President to grant clemency doesn't prevent the politically motivated prosecutions in the first place, but would make them harder to undo, which is less preventing future abuses as much as protecting them more if not even a change of governing party could reverse them.
Have pardons ever been realistically used as a political check against other branches like this? If I squinted I could maybe see something like Carter's pardoning of draft dodgers or Obama's pardoning of non-violent drug offenders, but neither of those really seem like they'd fit that well. I don't think it works that well as a check even if it had been. The real check the Executive has over the Legislative is the ability to dominate one party of the split chambers which has effectively rendered Congress inert. Kicking the can to pardons being punished by the President's relationship with Congress also doesn't work that well since, again, that implicitly relies on voters punishing politicians who don't do what they want. If they don't really punish the President, why would they be expected to punish Congress indirectly?
I disagree with the notion that the J6 protestors were politically prosecuted, at least insofar as participating in Trump's self-coup wasn't already political. The median sentence was 60 days, with those receiving substantially longer sentences mostly having engaged in violence. I don't like the framing of comparing it to BLM leniency, because two wrongs don't make a right. This isn't a prisoner's dilemma, it's just blatant hypocrisy. If anything, this will just make the situation worse as Democrats can now use this pardon to do another round of their own nonsense when they retake the White House at some point.
Jefferson pardoned everyone who had been charged under the Sedition Act. His party had taken power with a mandate to remove them, and I guess he was implementing his part.
I’m willing to bet that pardons were part of the normal political sausage-making that was the norm through…I don’t know when it fell apart. Reagan? Clinton?
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Yes, just now.
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I mean, the previous Trump term should've been a sign. And if not that, Obama's tenure, or Bush's, or...
The other main guardrail is supposed to be removal from office, but that's happened exactly once (technically never) and in the meantime the GOP has made it abundantly clear that they have no will or ability to hold Trump accountable.
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The majority of the J6 prisoners had the book thrown at them for minor crimes and impartially enforcing the laws against your own kin is a lot to ask- on the contrary, I think the pardon power is fine. Instead, weaponization of the justice system is the problem- and most of the j6 defendants would already be out without it.
The median sentence for participating in Trump's attempted self-coup was 60 days. I looked through a few of the longer sentences and they seemed justified given the violence that had taken place. I don't consider BLM leniency to be an excuse because I also would have liked for the book to be thrown at those protestors as well.
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it's something we ask of everyone in government, especially people involved in prosecuting and judging crimes, and it's very reasonable and useful
Really?
I thought judges and prosecutors are expected to step aside and let someone else handle the case when their relatives are involved.
Ok I clearly should've written more than one sentence. Yes, that is what I meant, and we should also restrict the president's pardon power to not apply to their relatives.
How about just "No pardons between presidential election day and the next inauguration"?
I realize this wouldn't prevent Trump's Jan 6 pardons, but as a dem, I find Biden's pardons worse than Trump's. I hope Trump may face some political price for this BS, but nothing can be done to Biden.
You know, restricting the formal powers an elected official has, between an election and the next guy formally taking his job, isn't a bad idea. A caretaker President, so to speak. Common in parliamentary democracies.
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Maybe move it back to a week before the election? In an abstract sense, I'd agree that maximizing the effect of pardons on a subsequent election would be one of the most straightforward ways to trim back the unilateral power of the Presidential pardon.
Probably would have hampered Biden's recent spree, but you'd just get any second-term president trying to front-load controversial pardons so that everyone will have forgotten about them by the time his successor needs to campaign. (as we are seeing at the moment to some extent; although Trump will of course have his own lame-duck period in which to get really crazy)
Recent presidents liked to issue many EOs on their first day, pardoning people seems similar. And while the masses will naturally forget what happened slightly less than four years ago, democrats have an incentive to bring it up if they think it will harm the next R candidate by association.
It is at least possible to cite past alleged misdeeds, Trump couldn't attack Harris during the campaign for Biden's last minute pardon.
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And the pardon on both federal and state levels is an important check on law fare against those on the other side. If the State knows that no remedy exists outside of the judiciary, the temptation to use it to silence opposition is pretty strong, as only a few of those wrongfully convicted will have the money to continue to fight the state apparatus for often a decade or more the economic and psychological damage done by a decade lost to prison etc would be a pretty hard thing for most people to take.
Further, the knowledge that lawfare is a thing and that the state will come after you creates a huge chilling effect. How many people would be afraid to go to a protest if they had reason to believe that the state would start combing through their past to find something they could be jailed for? Or that tge state might well just make something up. Even expressing support might make you a target.
This is a good point and I feel like further adding that this was actually done to Trump in his first term - people who earnestly and in good faith signed up to work in this administration knew that the Eye of Sauron would be pointed directly at them. It claimed multiple scalps as well. While a lot of the people who ended up in trouble had actually done bad things, if the same standard and scrutiny was placed on just about anyone in Washington you'd be able to find deeds that were worse or just as bad.
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The entire J6 and Trump prosecution campaign has at least IMO raised valid questions about the representation and "peer"-ness of urban juries for crimes committed more abstractly against the state. Why do DC and NYC juries, which are overwhelmingly left-leaning metropolitan areas, get to decide such nationally-important (or at least state-wide in the case of the NY state charges) cases exclusively? There's plenty of Civil Rights Era case law suggesting that non-representative juries are disallowed in the American system.
For example, I think it might be reasonable to (randomly?) shuttle national cases to other jurisdictions, or summon jurors from around the country.
Maybe, but once you start doing that you start undermining the fiction that consent of the governed is equally geographically distributed. It isn't, obviously (really, it's NYC/NJ, DC/MD, and Bay Area vs. the entire rest of the nation), but the shared pretense that it is legitimizes the government even in places over times where their regional interest parties lose elections.
I think doing such things would be explicitly acknowledging that the current methods are such a fiction, and that it would be an attempt to deliberately re-establish that geographical distribution: give some folks from Iowa, or even California a say in how violence against their Capitol should be tried in court.
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Is it really though?
The benefits of prosecutorial discretion and the need to consider a prospective defendant's race, gender, politics, etc... when exercising that discretion has been a core progressive belief/talking-point since the first Clinton administration.
Why is considering the specifics of a defendent's circumstances not impartial?
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Democrats have always been the first to defect on this sort of stuff, letting terrorists become professors and respected figures
I wonder what the arguments from either side would be if "the other guy did it first" wasn't acceptable to the voting public, and we held all of our public officials accountable to serving the good of the public as a primary purpose. While I agree that both leftists and democrats do bad things and have for a long time, I don't think refuting the partial benefits along with the outright bad/ridiculous is best.
Unfortunately, things are so heated that any political discussion is less about how society should be run to benefit the people living in it, and more about finding ways to stick it to the other guy. That might help placate half the country emotionally, but I'm not sure it does any material good for people who aren't politicians or above a certain income/class.
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Absolutely. I'm not really sure how it should worded though. Because you definitely want to avoid the ability to pardon people the President himself encouraged or enabled to avoid the ability to wilfully break the law on his behalf. But you can't entirely say "no political crimes" in a broad enough sense without preventing good pardons. Like the go-to example I keep thinking of is Julian Assange, who should be/should have been pardoned, so any rule needs to make sure that people like that still can be.
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It’s a ridiculous power. It works when it’s the King, because a king is in office for life and his heirs and successors are considered his heirs and successors in a way that the president of one party isn’t considered the heir to the president of another.
But to give someone in power for only 4-8 years the power to pardon someone with no long term consequences is dumb.
I wouldn't want a monarch like King Charles to be able to pardon people either, as their lifetime status makes them even more shielded from consequences of corrupt pardons.
For absolute monarchs, the ability to pardon basically just kills the rule of law. The only recourse people would have is outright revolution. It's a terrible system.
To the contrary, lifetime status means reputational consequences that don’t exist in a presidency. If King Charles pardons someone (of his own will rather than on ministerial advice) and then he goes on to commit a series of horrific crimes, his image suffers. If a president pardons someone, leaves office, and then that person commits a series of horrific crimes, the next president can just throw up their hands and say they had nothing to do with it.
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This is America, ridiculousness is a feature not a bug.
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When most liberal democracies have it, that takes the sting out of the word "ridiculous".
something can be 'ridiculous' as a result of its content, not its social context
Sure, I don't necessarily have anything against that argument, but I think it should be made clear what type of ridiculousness we're talking about.
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I think liberal democracy is ridiculous, so it still works for me.
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Precedent in almost all of them is that the power is used extremely rarely, as an event, and often subject to the intense scrutiny of a leader’s own allies. Lastly, the power typically sits with a ceremonial president with no real political power besides, in some cases, the ability to call an election.
Investigating each and every country would be a bit of a pain in the ass, as they don't exactly share the number of pardons on Eurostat, but my impression is that pardons are seen as completely mundane and boring. I'd eyeball-estimate something on the order of 100+ each year in any mid-sized country.
A wholesale pardon of deplorables would indeed cause quite a stir in Europe, but that has nothing to do with pardons themselves being haram.
Germany keeps the identities of those pardoned a secret, but a recent court case revealed that the number totalled 15 during Steinmeier's five-year tenure (2017-2022), or 3 a year.
Looks like it might be going out of fashion.
German wiki
Some French website
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