Debate on the Pardon Power

DW Buffa at Brookings, 2018:

On the afternoon of Wednesday, June 18, 1788, George Mason rose from his chair on the floor of the Virginia Ratifying Convention deeply troubled by what he thought of the convention’s failure to understand—the president of the United States might not always be someone of sound character and high intelligence. There would rarely, if ever, he reminded the delegates, be a commander in chief with the courage and rectitude displayed by George Washington during the War of Independence. There might even be a president who would try to change our form of government. The president, argued Mason,

“ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.”

Some of the most famous men in American history were there that day as delegates to the Virginia convention. Patrick Henry, afraid that a national government would destroy the states, was leading the fight to reject the Constitution. John Marshall, who, as Chief Justice of the Supreme Court, would do more than anyone to make the Constitution the foundation for the kind of strong national government Henry feared, was one of the leaders in the fight to ratify it. But there was no one—no one in Virginia, nor in the country—with a deeper understanding of the Constitution and what it meant than James Madison.

Madison understood immediately the force of Mason’s objection, but he had a response—a response in which he described limitations on presidential power that, to our great misfortune, have for too long been forgotten. Was there a danger in giving the president the power to pardon? “Yes,” replied Madison, but there was a remedy for the danger in the Constitution as drafted.

“There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty.”

POTUS and Marijuana

From President Biden:

As I often said during my campaign for President, no one should be in jail just for using or possessing marijuana. Sending people to prison for possessing marijuana has upended too many lives and incarcerated people for conduct that many states no longer prohibit. Criminal records for marijuana possession have also imposed needless barriers to employment, housing, and educational opportunities. And while white and Black and brown people use marijuana at similar rates, Black and brown people have been arrested, prosecuted, and convicted at disproportionate rates.

Today, I am announcing three steps that I am taking to end this failed approach.

First, I am announcing a pardon of all prior Federal offenses of simple possession of marijuana. I have directed the Attorney General to develop an administrative process for the issuance of certificates of pardon to eligible individuals. There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result. My action will help relieve the collateral consequences arising from these convictions.

Second, I am urging all Governors to do the same with regard to state offenses. Just as no one should be in a Federal prison solely due to the possession of marijuana, no one should be in a local jail or state prison for that reason, either.

Third, I am asking the Secretary of Health and Human Services and the Attorney General to initiate the administrative process to review expeditiously how marijuana is scheduled under federal law. Federal law currently classifies marijuana in Schedule I of the Controlled Substances Act, the classification meant for the most dangerous substances. This is the same schedule as for heroin and LSD, and even higher than the classification of fentanyl and methamphetamine – the drugs that are driving our overdose epidemic.

Finally, even as federal and state regulation of marijuana changes, important limitations on trafficking, marketing, and under-age sales should stay in place.

Too many lives have been upended because of our failed approach to marijuana. It’s time that we right these wrongs. 

The Congressional Research Service finds that a president cannot directly decriminalize marijuana, but there is more to the story -- hence step three of the Biden announcement.

Either Congress or the executive branch has the authority to change the status of marijuana under the CSA [Controlled Substances Act]. Congress can change the status of a controlled substance through legislation: Congress included  marijuana in Schedule I by legislation when it enacted the CSA, and has more recently passed legislation to impose controls on other substances, including synthetic cannabinoids and fentanyl analogues. In the alternative, the CSA empowers DEA to make scheduling decisions through the notice-and-commentrulemaking process, in consultation with the Department of Health and Human Services (HHS) (HHS has delegated its factfinding role in this process to the Food and Drug Administration (FDA)). The CSA provision directing DEA to schedule controlled substances as “required by United States obligations under international treaties” may limit the agency’s authority to relax controls of marijuana; another CRS report discusses considerations for Congress related to marijuana’s status under international drug control treaties.

If the President sought to act in the area of controlled substances regulation, he would likely do so by executive order. However, the Supreme Court has held that the President has the power to issue an executive order only if authorized by “an act of Congress or . . . the Constitution itself.” The CSA does not provide a direct role for the President in the classification of controlled substances, nor does Article II of the Constitution grant the President power in this area (federal controlled substances law is an exercise of Congress’s power to regulate interstate commerce). Thus, it does not appear that the President could directly deschedule or reschedule marijuana by executive order.

Although the President may not unilaterally deschedule or reschedule a controlled substance, he does possess a large degree of indirect influence over scheduling decisions. The President could pursue the appointment of agency officials who favor descheduling, or use executive orders to direct DEA, HHS, and FDA to consider administrative descheduling of marijuana. The notice-and-comment rulemaking process would take time, and would be subject to judicial review if challenged, but could be done consistently with the CSA’s procedural requirements. In the alternative, the President could work with Congress to pursue descheduling through an amendment to the CSA.

Weed the people: These are the states where marijuana is legal.

This map reveals that public opinion, red and blue states, and voters across the political spectrum have all come around to the idea of legal weed. pic.twitter.com/4MegZIgnv6

— Vox (@voxdotcom) April 20, 2022

Taft on the Pardon Power

 Chief Justice William Howard Taft, writing for the majority in Ex Parte Grossman, 267 U.S. 87 (1925):

To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. 

Curbing Presidential Power

 At NYT, Peter Baker reports on bipartisan proposals from Harvard law professor Jack Goldsmith, an assistant attorney general under President George W. Bush, and Robert F. Bauer, a White House counsel under President Barack Obama.  Their ideas include:

• Provide more authority and protection for future special counsels investigating presidents or other high-level officials and have them report their findings to Congress and the public rather than to the Justice Department.
• Prohibit presidents from pardoning themselves and amend the bribery statute to make it illegal to use the pardon power to bribe witnesses or obstruct justice.
• Bar presidents from managing or supervising private businesses or establishing blind trusts for their financial assets and require any business in which they have an interest to file public reports.
• Authorize inspectors general to investigate and report on reprisals or intimidation of journalists.
• Revise the authorization of force passed after Sept. 11, 2001, to prohibit humanitarian military intervention without additional votes by Congress and limit the use of nuclear weapons to self-defense in extreme circumstances.
• Ensure that the attorney general makes decisions on prosecutions involving the president or presidential campaigns, not the F.B.I. director, as happened during the Hillary Clinton email case.

The Constitution and the Pardon Power

Previous posts have discussed the president's pardon power.

From the Congressional Research Service:

Can the President issue a so-called “prospective pardon”?

With respect to crimes committed prior to the issuance of the pardon, it appears the President can issue a pardon before any criminal proceeding against the pardon recipient has been initiated. In the1866 case ex parte Garland, the Supreme Court announced that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” Put another way, for the President to issue a pardon, the crime must have already been committed, but the President need not wait for an indictment or other information before granting the pardon. Take, for example, President Gerald Ford’s pardon for former President Richard Nixon, which granted Nixon “a full, free, and absolute pardon . . . for all offenses against the United States which he . . . has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” Although no indictment had been brought against Nixon, his pardon shielded him from any future federal prosecution based upon any criminal acts he may have committed during the time period stated. A 1995 memo from the Department of Justice Office of Legal Counsel (OLC) confirms this understanding by the executive branch, noting that “throughout the Nation’s history, Presidents have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction.”

Can the President pardon himself?

The text of the Pardon Clause does not speak to whether the President can pardon himself. The Framers did not debate this question at the Convention, and it unclear whether they considered whether the pardon power could be applied in this manner. No President has attempted to pardon himself. In a memorandum issued several days before President Nixon resigned, the OLC concluded that the President could not issue a self-pardon, positing that “under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself.” This general legal assertion closely echoes Federalist No. 10, in which James Madison declared that “[n]o man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” However, Madison’s comments were not made in the context of pardons, and appear to be a general assertion about the rule of law, rather than an opinion on the constitutionality of self-pardons. While some legal scholars have contended that the President cannot pardon himself (see, e.g., here and here), others contend (see, e.g., here) that a good-faith argument, at least, could be made to support a self-pardon’s constitutional validity given the lack of textual restrictions against self-pardons within the Constitution. Accordingly, this is an unsettled constitutional question, unlikely to be resolved unless a President acts to pardon himself for a criminal offense

Trump, Arpaio, and Pardons

Adam Liptak at NYT:

President Trump’s decision to pardon Joe Arpaio was characteristically unconventional. It came late on a Friday night as a hurricane bore down on Texas. It concerned a crime some said was particularly ill-suited to clemency, and it was not the product of the care and deliberation that have informed pardons by other presidents.

But it was almost certainly lawful. The Constitution gives presidents extremely broad power to grant pardons.

Last month, a federal judge found Mr. Arpaio, a former Arizona sheriff, guilty of criminal contempt for defying a court order to stop detaining immigrants based solely on the suspicion that they were in the country illegally. The order had been issued in a lawsuit that accused the sheriff’s office of violating the Constitution by using racial profiling to jail Latinos. Mr. Arpaio had faced a sentence of up to six months in jail.

Mr. Trump thus used his constitutional power to block a federal judge’s effort to enforce the Constitution. Legal experts said they found this to be the most troubling aspect of the pardon, given that it excused the lawlessness of an official who had sworn to defend the constitutional structure.

Noah Feldman, a law professor at Harvard, argued before the pardon was issued that such a move “would express presidential contempt for the Constitution.”

The Justice Department's Office of the Pardon Attorney spells out ordinary standards for pardons:

When an offense is very serious (e.g., a violent crime, major drug trafficking, breach of public trust, or white collar fraud involving substantial sums of money), a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction. In the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account. Victim impact may also be a relevant consideration. When an offense is very old and relatively minor, the equities may weigh more heavily in favor of forgiveness, provided the petitioner is otherwise a suitable candidate for pardon.
...

The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication. While the absence of expressions of remorse should not preclude favorable consideration, a petitioner's attempt to minimize or rationalize culpability does not advance the case for pardon. In this regard, statements made in mitigation (e.g., "everybody was doing it," or "I didn't realize it was illegal") should be judged in context. Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.

The Pardon Power

Zoe Tillman writes at Buzzfeed:

The US Department of Justice's pardon office did not review former Arizona sheriff Joe Arpaio's pardon, a DOJ official confirmed to BuzzFeed News late Friday.
It didn't have to.

The US Constitution gives the president broad power to issue pardons and commute sentences, and there is no law requiring the president to consult with the Justice Department. President Trump is not the first president to issue a pardon that didn't go through DOJ, but he now joins the ranks of presidents who made controversial clemency decisions outside of the standard pardon process. And he did so with his very first pardon.

People can apply to the Justice Department's Office of the Pardon Attorney for clemency — in the form of shortened sentences or full pardons — and the attorneys there can make recommendations to the White House after reviewing the cases. The regulations that govern that process don't bind presidents to go through the Justice Department when they want to exercise their pardon power, however.

The Justice Department official said that the Office of the Pardon Attorney did not receive a pardon application from Arpaio, who was found guilty of criminal contempt in July for failing to comply with a court order that his office stop detaining people based solely on the suspicion that they were illegally in the United States.

Self-Pardon

Jessica Levinson at Vox:

As is the case with a number of important constitutional issues, the answer to the question here of whether or not the president can pardon himself exists in gray area. Or put more bluntly, the answer is, "Who the heck knows?" This is partly because this is simply not a question we ask ourselves very often.

Let's take a step back and remember the unique reality we all now inhabit. This is not an issue which the courts have been asked to answer. Why? Because a president is rarely in the position of asking whether he will pardon himself.

The Constitution means whatever the courts say it means. If the US Supreme Court decided tomorrow that the word "emolument" actually means "sunglasses," then that is the law of the land. Congress would have to ratify an amendment to the Constitution to change or override that interpretation. Article II, Section II of the Constitution provides that the president "shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Shortly before President Nixon resigned from office, the Office of Legal Counsel issued an opinion in which they cautioned that no one may be a judge in his own case. (This is also a principle of so-called "natural law.") This meant, the OLC said, that the president cannot pardon himself.

In addition, the language of the clause and Supreme Court case law seems to assume that there is someone giving the pardon (let's call this person Mr. President) and someone receiving the pardon (let's call this person Mr. Not President). Put another way, the language seems to assume there is a grantor and a recipient who are two different people.

But a conclusion based on natural law and an assertion that the language "seems to assume" something is hardly a conclusion you want to take to the proverbial bank.

Clemency

Pew reports:

Barack Obama ended his presidency having granted clemency to more people convicted of federal crimes than any chief executive in 64 years. But he also received far more requests for clemency than any U.S. president on record, largely as a result of an initiative set up by his administration to shorten prison terms for nonviolent federal inmates convicted of drug crimes.

Overall, Obama granted clemency to 1,927 individuals, a figure that includes 1,715 commutations and 212 pardons. That’s the highest total for any president since Harry S. Truman, who granted clemency 2,044 times – including 1,913 pardons, 118 commutations and 13 remissions – during his nearly eight years in office, according to a Pew Research Center analysis of Department of Justice statistics.

Clemency refers to multiple forms of presidential mercy. The two most common are commutations, which completely or partially reduce sentences for those in prison or on community supervision, and pardons, which forgive past crimes and restore civil rights. Two less-common forms are remissions, which reduce financial penalties associated with convictions, and respites, which are temporary reprieves that are usually granted to inmates for medical reasons.

Pardon and De Facto Dictatorship

As Darren Samuelsohn reports at Politico, Gingrich says Congress should change the law to allow Trump's conflicts of interests.  If it doesn't, he says, no biggie:  Trump can just pardon his kids.

“We’ve never seen this kind of wealth in the White House, and so traditional rules don’t work,” Gingrich said Monday during an appearance on NPR’s "The Diane Rehm Show" about the president-elect’s business interests. “We’re going to have to think up a whole new approach.”

And should someone in the Trump administration cross the line, Gingrich has a potential answer for that too.

“In the case of the president, he has a broad ability to organize the White House the way he wants to. He also has, frankly, the power of the pardon,” Gingrich said. “It’s a totally open power. He could simply say, ‘Look, I want them to be my advisers. I pardon them if anyone finds them to have behaved against the rules. Period. Technically, under the Constitution, he has that level of authority.”

Yale's Noah Messing suggests that a president might actually try to push the power that far:

The presidential pardon power is widely assumed to apply only to federal crimes — but not to civil offenses. No scholar, however, has ever carefully reviewed whether presidential clemency extends to civil offenses or explored the potential implications of this power. This Article provides the first-ever close study of whether presidential clemency is available for civil offenses. It concludes that presidents may pardon civil offenses — thus unearthing a new executive power, albeit one that has existed since 1787.

The Article consults the various types of historical evidence that the Supreme Court has stated are most relevant to determining the scope of the pardon power: historical practices in England and the colonies, records from the Constitutional Convention, and English common law — as well as an array of other interpretive tools.

The Article relies on the fact that “civil” offenses, as we now understand them, either were criminal offenses at the Founding or involved activities that went unpunished. In other words, there were no “civil” offenses (as we now know them) at the Founding; they arose only in the 1840s, as Felix Frankfurter memorialized in his 1925 article about the blurring lines between criminal and civil offenses. This Article shows, however, that the most analogous offenses prior to the advent of civil offenses could have been pardoned and were, in fact, pardoned by both presidents and English monarchs (whose acts of clemency the Supreme Court consults to assess the scope of the pardon power). In short, the various tools by which the Supreme Court assesses the breadth of the pardon power uniformly support the conclusion that civil offenses may be pardoned. The Article ends by launching a preliminary discussion of the uses and implications of this power.

President Obama and the Pardon Power

In chapter 14, we discuss presidential powers, including the ability to issue pardons. The Chicago Tribune reports that President Obama has been sparing in his use of this power:

A lot of things have moved pretty quickly in the Obama administration. Presidential pardons are not among them.

In two and a quarter centuries, only four presidents have been slower than President Barack Obama in exercising their authority of executive clemency -- granting either pardons or commutations of sentences to the convicted -- with thousands of applications pending at the Justice Department.

By the count of pardon expert P.S. Ruckman Jr., associate professor of political science at Rock Valley College in Rockford, Obama early this month passed Richard Nixon, moving into fifth place, and could overtake John Adams for fourth about 250 days from now.

George Washington was by far the stingiest with the power -- it took him more than 1,800 days to grant his first pardon.

More at http://pardonpower.com/