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Want to learn more about the presidential pardon power? Tune in in one hour (5 pm EST) for our webinar with @bkleinerman, @BrettschneiderC, and @carringtonam! Register here: https://us02web.zoom.us/webinar/register/8315967473203/WN_HnNBOLGQRG-NowN7LTqE7Q
Additional reading from our speakers!
Professor Brettschneider’s article: https://www.theatlantic.com/ideas/archive/2020/07/traditional-interpretation-pardon-power-wrong/614083/
Professor Brettschneider’s article: https://www.theatlantic.com/ideas/archive/2020/07/traditional-interpretation-pardon-power-wrong/614083/
Professor Carrington’s article: https://theconstitutionalist.org/2020/12/08/abusing-grace-constitutional-subversion-in-the-presidential-self-pardon/
Professor Kleinerman’s article: https://theconstitutionalist.org/2020/12/13/joe-biden-should-pardon-donald-trump/
Adam Carrington: This topic is obviously in the news right now. My contribution to the discussion was about the self-pardon. President Trump is considering it - I argued that he shouldn't try to do that based on the purpose of the pardoning power.
Carrington: Rather than just restate my arguments, I'd like to build on them. Lately, we've heard about the need for both the rule of law and rule through institutions.
Carrington: How should we (and shouldn't we) be relying on these institutions and laws? We demand too much of them. These demands are based in good (praise for the law and founders). But these laws and institutions aren't self-propelling.
Carrington: This translates (almost) into asserting that who rules doesn't matter at all. We can't reduce the human element to nothing though. The pardoning power illustrates this. Right human action is necessary. This is illustrated both in the Constitution and in Aristotle.
Carrington: We need the pardoning power for, among other things, mercy and prudence. The power is a sort of human discretion. The moment you give space for discretion however, you bring in the goodness (or lack thereof) of the officeholder. You can't make people dispensable.
Carrington: Law and institutions provide structure, human discretion, and instruction in intellectual and moral virtue. I reject the self-pardon not on legal grounds, but in the realm of how the rule of law and institutions could be used as pawns and turn discretion to abuse.
Carrington: Institutions conform and laws constrain, but all for the virtue of human action.
Corey Brettschneider: The usual way we think of the pardon power is, frankly, wrong. Given the uncertainty of the original meaning, we need to go to the values surrounding it. The structure of a limited presidency indicates that he acts for others, not himself.
Brettschneider: By the "traditional view", I mean that a president can only use the pardon power for two things - to intervene in an impeachment or to undo an impeachment. The power doesn't cross over into legal meaning.
Brettschneider: We believe that the president can't pardon a co-conspirator. Jeffrey Tulis and I began to unpack the traditional view. Let's begin the day the words were adopted.
Brettschneider: There was a unanimous vote to adopt the vote we have, but there was also a controversial vote over the president barring impeachment. On September 15, there was a vote to make an exception for treason.
Brettschneider: Madison talked about the House alone having the power to suspend the president's power. This certainly raises questions about Madison's views and the validity of the traditional view.
Brettschneider: There's a lack of certainty about the president's power to pardon co-conspirators. The entire oath of office evidences a constraint on power.
Benjamin Kleinerman: It's not possible to consider the pardon power without thinking about constitutional structure. The pardon is the only example of prerogative being given to the president by the Constitution. Pardoning was seen as a way of preventing discord.
Kleinerman: Presidential pardons can be important to political order and stability. It's a prerogative power because it exists outside of the law. The variant nature of authority can't be predicted in advance.
Kleinerman: If Biden decided prosecuting Trump would be too disruptive, he could pardon him. Washington pardoned the perpetrators in the Whiskey Rebellion. Sometimes you have to put justice/law aside for the common good.
Kleinerman: We've had a fair amount of peace. For the founders, pardoning would help stop/prevent violence resulting from the difficulties of democracy.
Kleinerman: You don't want discretion to be made law, but it is still necessary (or else the law will need to have exceptions for emergencies, etc.)
Kleinerman: Prerogative in a way allows the rule of law to be more strict. It can't be included in law as a right to do anything.
Kleinerman: Locke, an important influence on the founders, described the pardon power as necessary in seeing distinctions that the law cannot see.
Kleinerman: Prerogative is a supplement to the law - a necessary way to circumvent it in special situations. Unfortunately, there is room for abuse. For example, pardons shouldn't be used to shield friends/associates from rightful prosecution.
Kleinerman: The pardon power should never be a get-out-of-jail-free card.
A question from a participant: What were the founders thinking when they included a power that can't be checked legally?
Brettschneider: We don't know - we're in an unprecedented situation in which pardons may be challenged in court. The more we look, the more we'll see things in history that we weren't aware of. We may see an argument play out.
Kleinerman: It goes to Adam's point - the Constitution can't cover ALL possibilities. It is dependent on human error and judgment.
Carrington: In Fed. 74, Hamilton says that there are reasons to share the power with others, but he gives reason that it is given to the president for necessarily swift action. There's also an honor to pardoning others (in opposition to naked self-interest).
A question from a participant: If Trump does pardon himself, who has standing to challenge it in court?
Brettschneider: That would be the DOJ and it would go to appellate court and possibly the Supreme Court.
A question from a participant: How does the scope and constraints on the president's pardon power compare to that of governor's powers?
Carrington: The Fed. Papers bring up the idea of treason being an exception to the power. However, it seems that the president's pardoning power is much freer in many ways compared to those at the state level.
A question from a participant: What do the panelists make of the idea that Congress is in the best position to rein in the pardon power?
Brettschneider: If the pardon power is absolute, you can't have legislation to limit it.
A question from a participant: Would a Biden pardon of Trump leave the door open for a continuance of Trump's influence?
Kleinerman: It's useful to think about what it would mean - I'm not suggesting that it necessarily should be done.
In closing -
Carrington: I don't believe we should get rid of the pardon. We need some kind of modifier to prevent mistreatment under the law and there needs to be an element of mercy and forgiveness.
Carrington: I don't believe we should get rid of the pardon. We need some kind of modifier to prevent mistreatment under the law and there needs to be an element of mercy and forgiveness.
Brettschneider: I agree. Mercy is crucial in governance. It should be retained, but limited in its abuse.
Thanks for joining us this evening! Check out @TheConst_Blog here: https://theconstitutionalist.org/ and subscribe to our JMC newsletter for news on upcoming webinars: https://jackmillercenter.us8.list-manage.com/subscribe?u=ce1097e3be205ae8ceb70a2b2&id=aeece89afd
