I just finished reading the diary at the top of the Rec List regarding various democratic forms being embraced by various candidates on the supreme court, the electoral college, and other issues. However, one thing that is apparently missing is anything about the presidential pardon power, which is viewed as unfettered. Yet, the last several decades have illustrated that without a check by another branch of government, the pardon power can be used as a get-out-of-jail free card to grant license to executive or other law breaking. A few of the more noted examples:
1. Gerald Ford pardoned Nixon, letting him get away Scot-free. Do you think if Nixon had spent his life in jail that we would have Donald Trump today?
2. In Iran Contra, George H. W. Bush pardoned several people who at least had all appearances of being able to implicate Bush himself in the scandal.
3. In the present moment, much angst, sturm, und drang has be thrown at the questions: What if Trump pardons Manafort? Or Stone? Or his children? Or himself?
4. Trump pardoned Joe Arpaio for contempt of court. He could pardon others for contempt of congress when not fulfilling congressional demands. He could pardon other officers who willfully violate court directives. The pardon power, in corrupt hands, represents a direct threat to the rule of law.
All of that leads us to question: If the pardon power is indeed unfettered as it stands, is that reasonable in light of the lawbreaking to which such a rule has apparently given license? If that is the way things stand as a matter of law, then does our Constitution really institute a form of government that protects the American public from unlawful tyranny, as originally intended?
I think not. So, if our candidates really want to reform our democracy, this is one reform that should be on the table. Since I am bringing it up, I will propose the following language/principles:
Corrupt Pardon Prevention Amendment:
1. The Courts of the United States shall have power to and shall set aside all federal pardons issued under an apparent conflict of interest in connection with the person or matter being pardoned and pardons issued with any indicia of a corrupt purpose, such as obstructing justice. For purposes of this section, a vice president who becomes president shall be deemed conflicted as to the president who selected them as vice president and as to that president’s associates.
2. No pardons shall issue regarding conduct that is subject to an action to enforce congressional or judicial authority via the inherent enforcement powers of the congress or the courts, respectively, such as via contempt or other enforcement powers that might be granted them under the laws of the United States. Only once the matter being enforced is settled or otherwise resolved and a period of five years have passed since such resolution may a pardon for such conduct be considered and issued.
So, that is my proposal. Section 1 deals with thwarting justice in the executive branch. Section 2 prevents thwarting justice that is being sought in the other branches of government. This essentially would create a new check and balance of the president, specifically the pardon power, by the review in the judiciary.