On Wednesday morning, a group of Democrats in the U.S. Senate released a proposal for legislative reforms to the much-abused presidential pardon power found in Article II of the constitution. I’m preoccupied with the issue of pardons, as it manifests in the U.S., because it seems to represent an unfixable but slightly mysterious leak in the constitution itself. As I’ve sometimes had occasion to remark, I’m a small-R republican for Americans but a monarchist for my own country. I think this is the only sensible attitude for Canadians; I think we can recognize that the U.S. Constitution is a brilliant product of the human political imagination, quite worthy of the public veneration that secures it. If it still does.
But when it comes to presidential pardons they’ve got a real obvious problem without any equally obvious solution. Most countries’ constitutions have some sort of broad last-resort executive power to absolve persons of crimes in cases where the law or the judiciary might be seen to have gone awry. Canada’s monarchy has retained the ancient royal prerogative of mercy, which is available to the prime minister acting through the governor general, and it creates no controversy or occasions for shameless self-interested use. Yet. (And just think of some of the monsters and weirdos we’ve had as prime minister!)
But the U.S. has encountered a long series of ascendingly outrageous uses of the pardon power, culminating in former president Joe Biden’s unapologetic use of it to protect a wayward son and President Donald Trump’s routine rewarding of donors and cronies. One hopes, at least, that it is culminating; perhaps the republic will just keep tumbling down the slippery slope.
The pardon power was adopted into the U.S. Constitution from the British model, after some discussion amongst the framers, without any of the obvious “checks and balances” that characterize other features of the document. (The lone exception in the text is that the president cannot pardon a public official impeached by a legislature.) From a constitutional-engineering point of view, the ability of a chief magistrate to pardon a criminal is itself a check, one belonging exclusively to the executive, on the power of the judicial branch.
So there is no explicit limit on who can be pardoned; it is not obvious that a president cannot pardon himself; and there is no explicit rule that a pardon need even follow the offence being pardoned, let alone a trial and a conviction. Insofar as the Supreme Court has considered the pardon power, which has happened rarely, it has refused to discover any implicit limits.
Again, the basic situation is no different in constitutional monarchies like ours. (Not assigning a pardon power to anyone in particular is an option for a state, but this would make the actions of judges un-revisable by any earthly authority — which, honestly, may be the system of government toward which Canada is speeding.) The founders understood perfectly well that a president might make unscrupulous or self-interested use of the power, especially on the way out of the office; they just expected that republican virtue, along with the popularly elected legislature’s power to impeach, would protect the state from disgusting and obvious excesses at the top. And if it came to that, the American people would retain the power to amend the constitution as it thought necessary — although, again, any solution to the problem must leave the final decision-making power to somebody or other.
Well, the Senate Democrats, you will notice, aren’t proposing a constitutional amendment. That fail-safe is too fantastic to be invoked. The new bill repeats features of dozens of other pardon-reform acts that have been proposed since the time of presidents Jimmy Carter and Ronald Reagan, and, just like those bills, it is bound to get nowhere at all.
And even if you could pass one, it’s not clear that it would have any effect at all once the courts were done with it. The bill includes a purely legislative declaration that presidents can’t self-pardon; no one knows if the Supreme Court would accept such a principle invoked by such a source, although it is sometimes thought they would act on the (supra-constitutional?) legal maxim that no man should be a judge in his own case. It also proposes to impose procedural “transparency” requirements on the recipients of pardons, in the hope that sunlight will serve as a proverbial disinfectant. The truth is that everybody knows Trump hands out pardons to criminal supporters according to his own partisan interests; there’s no lack of sunlight in this sewer at all. It’s just one the American people, by and large, are content to live in.
National Post
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