The Pardon Power

Der Furor wasted no time in seizing the reins of power once he had been sworn in as the 47th President. He signed scores of royal decrees Executive Orders on a wide range of topics, many of them rescinding Executive Orders signed by previous presidents. He loves the trappings of power, and the imperial image of sitting at a desk with the cameras rolling, signing and showing off one huge, leather-bound order after another, is one of the joys of his presidential life. 

Many of his executive orders drew criticism for their mean-spiritedness or downright unconstitutionality, but few received as much condemnation from so many quarters as his full and complete pardons of persons imprisoned for crimes committed during the insurrection of January 6th, 2021. A significant number of those pardoned were sentenced after being convicted by juries for violent attacks against police officers (five of whom were killed) or causing millions of dollars of intentional damage to the Capitol itself.

The authority to issue pardons is established in Article II, Section 2, Clause 1 of the Constitution, which says that the president 

"... shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Because this wording is pretty straightforward, the presidential pardon power is almost always presented in the media and by presidential allies with adjectives like full, complete, and unlimited. Other adjectives which should perhaps apply, like judicious, appropriate, earned, or deserved, are seldom used in the new America.

A president's pardon power is, in fact, somewhat limited; they can grant a pardon only to persons who were convicted in a United States District Court, the Superior Court of the District of Columbia, or a military court-martial. They cannot pardon persons convicted in state courts and may not be able to pardon themselves - this has never been litigated before (and you can bet Der Furor would do so on his own behalf), although a simple reading of the Constitutional provision above ("... except in Cases of Impeachment") would argue against it*. 

You can argue about the propriety and appropriateness of former President Biden's pardon of his son Hunter, and the preemptive pardons he issued to members of his family and to public servants likely to be targeted by a vengeful Furor ... I personally think they were ill-considered, yet well-intended, as compared to Der Furor's pardons issued to dangerous criminals for purposes of personal gain and revenge.

I believe that the inappropriate abuse of presidential pardon power argues for a clarification of guidelines and limits on that power. One hopes this could be accomplished by legislation validated by the Supreme Court rather than by Constitutional Amendment, but in today's overheated political environment, either one is probably out of the question. We will be stuck indefinitely with a presidential power that is both just and moral, but ripe for abuse.

What would I recommend as guidelines for pardon power? I believe there are four crimes that should be ineligible for presidential pardons:

Murder;

Crimes committed as intentional acts of terrorism, whether or not lives were lost;

Financial crimes which resulted in irrecoverable losses for the victims; and,

Treason**.

Pardons issued for other offenses should be carefully vetted and should reflect an appropriate balance of mercy and justice ... not presidential whim. 

Pardon me for thinking so.

Have a good day. More thoughts coming.

Bilbo

* But my degrees are in Linguistics and International Relations, not Constitutional Law, so what do I know?

** The Constitutional definition of treason in Article III, Section 3 ("Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort") is vague and needs clarification in order to prevent abuse of the charge; Der Furor has his own ideas of who is guilty of treason, and his definition is, let's just say, "expansive."