Pardons

[Jonathan Buhacoff]

Proposal:

The Constitution must explicitly prohibit a President from issuing a pardon that personally benefits the President, the President’s extended family, and the President’s friends and associates (including political, religious, and business associates). This includes a prohibition on pardons for these people (including a prohibition on a self-pardon since the President is first on the list), and also a prohibition on issuing a pardon to anyone whose crimes primarily benefited anyone on the list (for example intimidation or violence towards political opponents or business competitors or influence peddling).

The Constitution must explicitly prohibit a President from issuing a pardon on or after the day voting starts for the next Presidential election, or on or after 90 days before the end of the President’s term, whichever is earlier. This is part of the caretaker government proposal.

The Constitution must explicitly state that a President can only pardon crimes for which people have been convicted by a federal court, meaning the President cannot issue pardons in advance and cannot pardon state or local crimes.

The Constitution must explicitly state that a President’s pardon merely cancels any remaining penalties or punishments and does not undo the conviction itself nor any penalties or punishments already applied.

Discussion:

In the United States, the President has the power to pardon people convicted of crimes. This is a balance to the power of the Judicial Branch, to be used in exceptional cases when the President believes that the country or the cause of justice is better served by a person not serving their sentence.

However, there is no criteria for what kind of person or crime can or should be pardoned.

One illegitimate use of the pardon that hasn’t yet been attempted in the United States is a president pardoning himself or herself. A self-pardon is obviously unethical because one of the pillars of ethical government is not using public office for private gain. Furthermore, a self-pardon ability makes the executive completely immune from breaking the law. A president with control over law enforcement and a self-pardon ability could do anything without any accountability by the Legislative Branch or the Judicial Branch, including murdering all the judges and blowing up the legislature, issuing a self-pardon for those crimes with some platitudes about how this is best for the nation, and then declaring himself or herself a dictator. It also creates the possibility that the Vice President will murder the President, thereby becoming President due to the line of succession, and pardoning himself or herself for the treasonous crime.

For these reasons, the Constitution must be amended to explicitly reject the idea of a Presidential self-pardon.

In the United States, the constitution only prohibits a pardon in cases of impeachment but this is very weak protection because if the legislature chooses not to impeach, or impeaches but the Senate not convict, or if the president disrupts the legislature illegally to disrupt the impeachment proceedings, the president can still self-pardon. The legislature must ensure the constitution specifically prohibits a self-pardon to prevent obvious future abuses.

This proposal prohibits pardons for the President’s extended family. This intentional because if we limit the prohibition to the President’s immediately family, the President can influence their extended family to commit crimes to benefit the President and then pardon them, or the President can be influenced to pardon an extended family member who committed crimes for their own benefit. The office of the President is so important that the burden of good behavior should be on the President’s extended family as well as the President. If the President or the President’s family commits crimes against the United States, they must be prosecuted like anyone else.

This proposal prohibits pardons for the President’s friends and associates, including former friends and associates. This intentional because if we limit the prohibition to the President’s friends, there will be endless arguments on whether someone was a friend or merely an associate. The office of the President is so important that the burden of good behavior should be on the President’s close friends as well as anyone else who has a relationship with them (an associate). If any of these people commit crimes against the United States, they must be prosecuted like anyone else.

This doesn’t mean that the President, the President’s extended family, or the President’s friends and associates cannot be pardoned at all. It only means the President cannot do it. If we also adopt the proposal to have a single-term limit for the office of the President, none of these people will need to wait more than 4 years for an opportunity to be pardoned by the next President. If what they did was truly for the good of the country, this should not be controversial. But if what they did was criminal and selfish, their chances for a pardon by anyone who is not involved with them should be slim to none, and that’s the point of this proposal.

Another illegitimate use of the pardon would be to pardon people who committed crimes against the United States before, during, or after an election in an attempt to subvert the democratic process and unjustly influence the results of the election, because these actions either benefit the President or the President’s associates, such as other candidates of the same political party.

In the United States, Presidents often pardon people just before leaving office at the end of their term. This is cowardly — if those people deserved to be pardoned, they should have been pardoned at the earliest opportunity, not at the end of the President’s term when the President has no political consequences from the public opinion of the pardons. If the pardons were legitimate, they would have been done as soon as the matter was decided and the President would stand by these pardon decisions. This disturbing habit of timing, along with the possibility of pardoning crimes related to subverting an election, lead to the proposal that the President’s power to pardon must end the day before elections start.

Pardoned individuals do not get their money back for any fines or damages paid, they do not automatically get their professional license back if it has been revoked, and of course it’s not possible to undo any time already served in jail or prison. They do get their freedom, though some of their privileges may be limited by their prior conviction.

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