The Pardon Issue

Mark Kleiman points out that Democrats can pass a bill stipulating that "no funds" be used to issue a pardon in violation of this guideline from the Pardon Attorney's office:

No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.

That would, of course, have the effect of preventing Bush from pardoning Scooter Libby. Republicans could, clearly, filibuster any such bill. But from where I sit, that's a political fight Democrats would like to have on their hands. First Pete Domenici politicizes corruption investigations, then he mounts filibusters to prevent justice being done to felons inside the Bush administration, etc.

Comments

Is that a new guideline? Widely ignored?

Posted by Preston | March 11, 2007 2:50 PM

It wouldn't have the effect of preventing Bush from pardoning Scooter Libby, as Kleiman makes clear.

"But Congress could in effect require that he write it out in his own handwriting, by forbidding any other federal employee to help him."

Well, the Republican National Committee or some such would organise it and write it up. And I'm not sure that it's really possible to prevent the White House staff from assisting the President in basic administrative duties in this way (you think SCOTUS would allow a law preventing funds for recieving the Syrian ambassador, so that Bush had to open the White House door himself etc? I doubt it). But certainly it would force Bush himself to be more personally identified with the pardon and that would raise the political costs big-time.

Posted by otto | March 11, 2007 2:59 PM

"That would, of course, have the effect of preventing Bush from pardoning Scooter Libby."

It would do no such thing. Did you actually read Kleiman's post?

Posted by Petey | March 11, 2007 3:29 PM

What was the motivation for putting the power to pardon in the Constitution, anyway?

Posted by cg | March 11, 2007 3:36 PM

Is that a new guideline? Widely ignored?

It's from 1993 (amended twice in 2000) and I'm not sure if, in practice, it's widely ignored but it is purposefully written so that it can be easily ignored.

The last section reads:

§ 1.11 Advisory nature of regulations.

The regulations contained in this part are advisory only and for the internal guidance of Department of Justice personnel. They create no enforceable rights in persons applying for executive clemency, nor do they restrict the authority granted to the President under Article II, Section 2 of the Constitution.

Posted by SoCalJustice | March 11, 2007 3:52 PM

I've yet to hear an answer to this question:

Why can't the President simply change that guideline?

Posted by sherifffruitfly | March 11, 2007 4:04 PM

The guideline merely concerns the filing of petitions to pardon. But why does the president need to wait for a petition before issuing a pardon? Ford didn't with Nixon.

Posted by k | March 11, 2007 4:47 PM

That guideline is ridiculous. Is the Presidential pardon supposed to be a purely symbolic gesture for those that have already served an unjust sentence? You can only get a pardon AFTER you serve the time you never should have gotten in the first place? That's not a pardon, that's an indulgence.

And to the rest of the post, forget about silly funding games. The pardon, like the veto, is in fact an inherent power of the presidency. This kind of stupidity would only distract from the real progress that could be made through Congressional investigations, if the Libby case is that important.

Posted by five toed sloth | March 11, 2007 5:11 PM

"That would, of course, have the effect of preventing Bush from pardoning Scooter Libby."

I doubt it would, but if it did, it would be unconstitutional.

The last 7 years have had an unfortunate effect on the ability of intelligent laypersons like Matt to tell good constitutional arguments from bad.

Posted by rea | March 11, 2007 5:25 PM

I was just about to write the same thing as k above, but then I noticed Kleiman proposes this law:

No funds appropriated in this or any other bill shall be used to receive or process a petition for pardon, or to issue or prepare to issue a pardon, for any offense of which the person to be pardoned has been convicted within the previous five years."

Such a law would not just apply to the processing of petitions, but to the issuance of pardons, whether in response to a petition or not.

Nevertheless, this seems like a mischievous and somewhat fivolous proposal based on an unrealistic reading of congressional appropriations authority. The president has the explicitly granted power to grant pardons. If Congress's appropriations power extends even to the paperwork, phone bills and clock time run up in the the exercise of explicitly granted constitutional powers, then the president in effect has no powers at all other than those whose exercise is not permitted by Congress. I think I might personally prefer a system based on this kind of legislative supremacy, but it is clearly not in the spirit of our own constitutional system based on "co-equal" branches.

Consider, for example, that under the constitution the president "may require the opinion, in writing, of the principal officer in each of the executive departments." Could the congress write a law that says that these officers may not submit the required opinions on government paper, or that the president cannot use government paper to send a request for these opinions?

The "sound policy" Kleiman refers to is one part of the Judicial branch regulations applying to petitions for executive clemency, and it explicitly applies to pardons - which I undertstand differ from reprieves, commutatation of sentence and other forms of executive clemency. So even building on that regulation would not form a basis for restricting the president's ability to commutate of sentence. Bush could simply commute Libby's sentence without pardoning him.

And in any case the regulations to which Kleiman appeals are advisory regulations governing an entirely different branch of government, so cannot be used as a basis for a restriction on executive authority. They regulations announce as much in the concluding paragraph of the section.

You would be hard-pressed to find someone who is more convinced than me of the need to shrink executive power and reverse the 100-year trend of executive branch aggrandizement. But Kleiman's proposal goes way too far in that direction.

On the other hand, it might be worth considering a constitutional amendment limiting or eliminating the president's pardoning authority altogether.

Posted by Dan Kervick | March 11, 2007 6:01 PM

" ... then the president in effect has no powers at all other than those whose exercise is not permitted by Congress."

Correction. Change to:

" ... then the president in effect has no powers at all other than those whose exercise is permitted by Congress."

Posted by Dan Kervick | March 11, 2007 6:04 PM

Let's not be naive. The obvious Constitutional issues aside, Dems pardon too and no one really wants to limit the executives power to pardon.

Posted by Don | March 11, 2007 6:54 PM

I don't think it makes sense for Congress to pressure Bush into not issuing a pardon for Libby. The likely result is that the petulant little prick would then issue a pardon just out of sheer spite.

Posted by global yokel | March 11, 2007 8:04 PM

A law such as the one proposed would be irrelevant meddling on the part of congress, and I doubt it would even work very well as PR. It's not as if there's some sort of mystery about who signs presidential pardons.

If I were given a special dispensation to amend the constitution, I'd amend the pardon power to prevent presidents from pardoning members of their own administrations. Having the pardon in the background has given Libby (and any other criminally liable executive branch employee) an enormous incentive to lie, stonewall and obstruct, knowing they will likely be bailed out by the Criminal-in-Chief. However, back in the real world, absent some far more pronounced public outrage, I doubt we'll get such an amendment.

Posted by jimBOB | March 11, 2007 8:26 PM

The only thing Democrats can do about the pardon is to raise the political price for doing it. Instead of gimmicks like this they should seek to place Libby's actions in context - of manipulating intelligence to sell a war and smearing its critics.

Putting Plame before Congress is a good start. They should continue by getting Rove, Hadley etc to testify on their role in this. They could also restart the Senate Phase 2 investigation into the pre-war intelligence.

Notice that Kristol, Krauthammer etc are all calling for an immediate pardon. Why is that when Cheney and his faction usually strive to remain under the radar? Why not just wait for a quiet pardon in 2009? I think its because they know that if the Democrats were to investigate what they should be investigating for the next 2 years a pardon for Libby could become a lot more expensive

Posted by wagonhead | March 11, 2007 10:45 PM

It's from 1993 (amended twice in 2000)

Chuckle.

Really, you're kidding, right? That's too funny to check.

Posted by Al | March 11, 2007 10:52 PM

What was the motivation for putting the power to pardon in the Constitution, anyway?

It's a royal power.

It's always been interesting to me that the royal power the framers chose to keep was this one, limiting it only to prohibit pardons for impeachment offenses (and, obviously, pardoning Libby violates the spirit, if not the letter of the law).

I find it fascinating that we chose the quality of a king's mercy as the one of the few kingly powers not to put a significant institutional check on in the Constitution. We put fetters on a king's historically unchecked ability to run off and fight wars, on his ability to negotiate foreign treaties, on his ability to appoint judges & top officials, on his ability to make law, to raise & spend money, etc--but almost none on his ability to call off the dogs.

The way I always figured it was that at the inception of the US, you had a nation that was split almost evenly between Tory and Revolutionary. What should happen, and what does happen in most revolutions, is that when the big battles are over, the winners go from town to town, line up the losers against a wall, and shoot 'em.

The Constitution gave the President nearly unfettered power to prevent this from happening, no matter how much people screamed for blood. The President can issue specific pardons for individuals, he can issue blanket pardons. Congress, the Judiciary, mobs, they can bitch and moan, but the President has almost unchecked authority to stop mass reprisals from happening. In theory, the President is the only elected official who represents the entire nation. It makes sense that he is uniquely suited to see the need to be a peacemaker, and it's fascinating that he would be given this nearly-unfettered power to make internal peace, when you consider the strictures put on him when it comes to doing anything else.

Beyond the peacemaking ability this gives the chief executive, it also seems fitting to me that we should choose to make our executive most king-like only in his ability to make government do NOTHING. If our President wants to unleash the full force of government against you, he wants to take your freedom and your livelihood, there's gonna be courts and laws and other people in government are gonna be able to stop him, and it's gonna be a big ol' thing. But if our President wants to stop the government from coming after you? Yep, he can do that pretty easy.

Of course, it's instructive of how fundamentally George Bush doesn't get American democracy that he it's inconceivable he'd use his pardon power to help out anybody but his cronies who got caught while they were doing his dirty deeds. Sleazy bastard.

Posted by anonymous | March 11, 2007 11:10 PM

Mark Kleiman points out that Democrats can pass a bill stipulating that "no funds" be used to issue a pardon in violation of this guideline from the Pardon Attorney's office:

This seems rather silly to me.

I mean, George can go buy his own pen, his own paper, and write a pardon. He can write the damn thing in crayon if he wants. I see where defunding a war makes it impossible to fight said war, but I don't get where defunding the pardon process makes it impossible to write a pardon. It's not like there's massive overhead costs in writing a pardon--honestly, have stamps really gotten that expensive?

Posted by anonymous | March 11, 2007 11:21 PM

Here is what I would expect to happen if Congress did send Bush a bill with a rider disallowing the executive from implementing pardons.

Bush would sign the bill, along with a signing statement that specifies that the rider is unconstitutional and will therefore be ignored.

Then we will ignore it. And the executive branch will follow orders.

Posted by Leonard | March 11, 2007 11:34 PM

I bet it would be trickier than you think to do an endrun around defunding the pardon process. Watch the wierd things the pols are forced to do to avoid corruption laws while they dip their beaks. You use the wrong phone, ask the wrong person a question, etc.. and you have ran afoul of the thing.

Posted by Ed Marshall | March 11, 2007 11:36 PM

I just want to chime in that this use of the spending power would be very, very unconstitutional. Congress's use of the spending power is subject to the "unconstitutional conditions" doctrine: While the government does not have to fund a certain activity, it cannot condition funds on a waiver of constitutional rights. Usually this comes up in the individual rights context (you have no constitutional right to a federal job, but you can't be asked to waive your right to vote as a condition of federal employment; you have no constitutional right to a tax break, but the government can't condition a tax break on your not criticizing the government), but I don't think there's serious dispute that it'd apply also to the pardon power. There are certain core areas so clearly committed to the discretion of one branch of government that the other branches can't interfere. This idea gets a bad reputation because John Yoo and the Bush Administration claims it extravagantly and undeservedly with the commander-in-chief power, but it's fundamental to a government of separated powers.

Can Congress withhold funding for court staffs (everything but judicial salaries, which are specifically protected by the constitution) for judges that find certain laws unconstitutional? Or (further stretch from the funding power but still an exercise of the same principle behind the unconstitutional conditions doctrine) can the executive deny police protection to members of Congress how don't support his education bill? Clearly the answer is no on both counts.

This proposal might be good policy (though it's complicated against the backdrop of massive, almost unfettered executive discretion about who to prosecute in the first place), but I just want to contribute to shooting down the idea that it would be even a little bit constitutional.

Posted by pmm | March 12, 2007 10:12 AM

If this has been in place since 1993, it doesn't appear to have had any effect on the FALN pardons in 1999 (sentence not completed) nor on the Susan McDougal pardon (not 5 years), nor the Marc Rich pardon (avoided trial even).

Posted by Sebastian Holsclaw | March 12, 2007 11:27 AM

I hate to be a constitutional process nerd, but as much as I am fully supportive of what Fitzgerald did, as just as I think the Libby verdict was, and as opposed as I am to a pardon, I think it raises serious separation of powers problems for Congress to try to thwart a particular pardon. A much better idea, in my mind, is a constitutional amendment that prohibits pardons in the "lame duck" period between an election and the inauguration of the new president. That imposes a modest political check on pardons, which accords with what the Framers probably would have intended. (The Framers failed to foresee a whole series of problems with "lame duck" periods, including the need to keep them short, which is why there had to be an amendment to move inauguration day from March to January). This would not get done in time to affect Libby, but it would have a good long term effect, since not all unpopular pardons would be deterred, but the truly egregious ones (e.g., Marc Rich) would be deterred.

Posted by Winston Smith | March 12, 2007 11:55 AM

As noted above, this would be unconstitutional. There are no limits on the President's pardoning power. Even if were a court to uphold it, the president could just buy his own pen and paper and hand write a pardon.

Any reform would require a constitutional amendment. Say, only giving the president the power until the election day immediately before the end of his four year term. Or giving the pardon power to a group instead of just one man.

Some states require a vote of the state parole board (and usually the governor has just one vote out of several) to order a pardon. New Jersey used to have such a system and when Bruno Richard Hauptmann was on death row for the Lindbergh Baby case, the governor, Harold Hoffman was unsure of his guilt and wanted to commute his sentence. The rest of the parole board disagreed and the execution went forward. Hoffman may or may not have been right (historians still disagree if Hauptmann actually was a kidnapper, a patsy or just an embezzler who pretended to have the Lindbergh baby in order to extort the ransom) but he lacked the power most governors and the president have to act as he thought just.

Incidentally, Hoffman himself turned out to be a crook, it was discovered years later that he had stolen hundreds of thousands of dollars from the state. But it did take some balls for a politician to come out in support of a convicted kidnapper and murderer.

Posted by beowulf | March 12, 2007 1:39 PM