Preventing Corrupt Self Pardons in the Post Trump Era
By: Bryce Nesbitt
Tags: Coronavirus, Trump Administration, Constituional Amendment, Corruption, Pardon Power

Preventing Corrupt Self Pardons in the Post Trump Era

On January 19th, President Trump will likely still be in office, and will almost certainly issue additional unprecedented pardons. It’s time to seriously debate the limits of that power. The constitution, as interpreted up to now, places virtually no limit on the pardon power:

United States Constitution Article II, Section 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

An anti corruption version could additionally restrict:

….except in Cases of Impeachment, excepting for himself, excepting in cases of acts committed during his current and prior term of office, excepting for acts during the prior two years, and except as related to his own election to office.

And perhaps, so voters can weigh in, prevent the lame duck pardons:

….and except during the period from one month before a presidential election until the subsequent inauguration. All pardons must immediately be made public.

A key hallmark of the position of the United States in the world, and the use of the dollar as a global reserve policy, rests on the foundation of historically low levels of corruption. No matter your view on President Trump, the idea that any President could self pardon corruption crimes is a clear and present risk to that reputation, and thus to the standing of the USA in the world.

The constitution is not particularly hard to amend, at least for uncontroversial matters. It takes a joint resolution of congress (or a less likely a State convention). The President is not even involved, and it does not require a President’s signature. The National Archivist sends a letter of notification to each Governor along with informational material. The Governors then formally submit the amendment to their State legislatures or the state calls for a convention, depending on what Congress has specified. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States.

This restriction would hardly affect most historic pardons which come through the Justice Department. Most of those pardons happen long after the event, trial and conviction. This restriction would prevent a President from resigning for the purpose of receiving a pardon from his Vice President (as happened with Richard Nixon). And yet, mercy could still prevail. The new President could still choose to vacate convictions or pardon the acts of a prior administration, just not right away.

There’s nothing partisan about setting fair and straightforward rules to prevent future corruption. It’s time to consider such moves.