The Solution
Yglesias wondered if it was good for Presidents to have the pardon power. My answer is yes, with one obvious exception: his underlings, for reasons Luther Martin and George Mason adduced and Presidents named Bush have exemplified. The solution seems simple, if not easy, since amending the constitution is never easy:
Amend the President’s pardon and commutation power to exclude executive-branch employees convicted of crimes carried out in the course of their professional duties. Vest the power to pardon those people in the Congress, maybe by a super-majority of the Senate – a kind of inverse impeachment. Marc Rich cases will still exist, but Marc Rich-type pardons merely insult Justice; they don’t further executive plots.
In my view, no country should curtail its aggregate capacity for official mercy. Mercy is something we have little enough of in the best of times. Curtailing the aggregate capacity for criminal conspiracy at the highest levels of government, on the other hand, I am all for.
The time to strike is now, by the way, if any big brains want to get cracking on a pardon-power amendment. A majority of the country thinks the Scooter Libby rescue stinks, and the Bushies are almost certainly going to have to issue a raft more pardons for themselves on the way out the door. An amendment in circulation now could be hitting state legislatures when the public is primed for passage.
Comment by SomeCallMeTim —
July 4, 2007 @ 9:19 am
In my view, no country should curtail its aggregate capacity for official mercy.
Leftist.
Comment by Thoreau —
July 4, 2007 @ 9:25 am
I agree with everything you said, Jim.
We could start a petition or something, get it in circulation around the blogosphere, and call our members of Congress.
Comment by monkey.dave —
July 4, 2007 @ 2:33 pm
The ironic thing is that the Presidential pardon-after-conviction is the correct solution to every conservative’s favourite torture hypothetical. It will only be invoked only once every few hundred years, which is about how often the ticking time bomb scenario occurs in real life. That way you can save the city, get the girl, and not have to rot in the pen. AND, the rule of law is preserved. What’s not to like?
Comment by Jon H —
July 4, 2007 @ 4:13 pm
My first thought is that this would just lead to outsourcing to someone outside the Executive branch. Instead of a VP’s deputy doing Libby’s work, it’d be some RNC wonk.
If Cheney told someone at RNC, and the RNC flack pushed the story to the press, then lied about it to investigators, then that person would be eligible for a pardon by virtue of not being part of the Executive branch.
They’re already doing it with their email traffic.
Comment by Thoreau —
July 4, 2007 @ 6:02 pm
True. Between unofficial outsourcing to parties and related groups, and the legal fiction that a government contractor isn’t part of the government, they could get around that.
Maybe we should concentrate on impeachment instead of amendments.
Comment by Brock —
July 4, 2007 @ 9:19 pm
My thoughts exactly.
Comment by Thoreau —
July 4, 2007 @ 9:38 pm
Brock-
Better make it explicit that this applies to private companies contracted to perform services for the executive branch.
Comment by Eric the .5b —
July 5, 2007 @ 11:58 am
Very much agreed.
And even better, if the torturer in such a scenario cares about the rule of law and human rights in the general (even if he was willing to torture in the ticking-bomb instance), the USSC has ruled that he can refuse the pardon and insist on serving his time.
Comment by Jon H —
July 5, 2007 @ 9:21 pm
This might work if it was amended to involve something like demonstrating a conspiracy-like relationship, with a very, very low standard of proof.
As in, if the guy being pardoned were from Crawford, or were a Skull & Bones, that should be enough to require a supermajority of Congress.
I mean, you’re not convicting someone. You’re blocking the pardon of someone who *was* convicted, which is essentially arbitrary *anyway*.
I’m not sure how you’d express this in law, however.