Sunday, January 4, 2009

Comment: From a Reader

I am Jeffrey Killeen, an attorney practicing estate and Medi-Cal planning law in Santa Cruz, CA, and a member of the California Bar since 1978. Ever since the Nixon pardon, and Nixon's remark to David Frost that if the President does it, then it is legal, I have been troubled by the potential for abuse of the power of Presidential Reprieves and Pardons. If President Bush pardons his entire administration, as I believe he will, then the path to lawlessness and tyranny by the expansion of Presidential power will be clear: stonewall to the end of the administration, and then pardon everyone. Thus, the time will soon be ripe to consider a constitutional solution. Prof. Ruckman has graciously offered me the opportunity to publish a proposed constitutional amendment on his pardon blog, and I am very pleased to offer my thought.I propose a 28th amendment of the U.S. Constitution, as follows:

“1. Presidential Reprieves and Pardons shall be effective only if, and as of the date when, published and made generally available to the public in the usual and ordinary publications used to announce public actions of the President. Except in capital cases, a Presidential Reprieve or Pardon shall be effective neither if so published (a) less than 10 days prior to an election at which a successor to the incumbent President could be elected, nor (b) during or after such an election and before the day following the inauguration of the next President, unless the incumbent President has been elected to succeed him or herself, nor (c) less than 30 days prior to a resignation of the President, nor (d) less than 30 days prior to the removal of a President by the Senate exercising the sole Power to try all Impeachments. In capital cases, a Presidential Reprieve or Pardon, granted on a date when such Reprieve or Pardon is otherwise ineffective under the prior sentence, shall be limited in effect to a stay of execution and shall be given effect only until the day after the next President assumes office. No Reprieve or Pardon may be granted under any circumstances for acts occurring after the publication date thereof.2. This amendment shall take effect beginning with the administration of the next newly elected President to take office after the date of the adoption of this amendment. ”

Rep. Nadler is carrying a proposal for a House Resolution against such pardons, see, but the power to grant Reprieves and Pardons is constitutional, and therefore a House Resolution cannot have any practical effect on the upcoming Bush pardons. The House simply does not have the authority to limit the President's power to grant Reprieves and Pardons.The core problem is that when the President grants Reprieves and Pardons after an election, there is no effective political or legal consequence, because the American people will have forgotten that it happened by the next election. Hence, I propose an amendment that will eliminate the practice of post-election pardons.

My proposal requires that a Reprieve or Pardon be published to be effective, that is, no private or confidential pardons will be allowed. It goes on to render such Reprieves and Pardons ineffective if made too close before an election at which a successor to the incumbent could be elected, or if made during or after such election unless the incumbent has been elected to succeed him or herself. This means that the President or his party will have to bear direct and immediate political consequences for Reprieves and Pardons granted. The next best time to grant Reprieves and Pardons will be the day after inauguration, but that will cost precious political capital, and most administrations will not realize that they intend to embark on rampant lawlessness until later in the course of the administration

Further, the amendment renders Reprieve or Pardon ineffective as to acts which occur after the date of publication of the Reprieve or Pardon, thus preventing future administrations from granting themselves a blanket pardon on day one for acts which occur on day two or later. Hence, eliminating post-election Reprieves and Pardons should largely put a stop to the abuse of this power by future administrations, and the prospect for the President that either his party must bear political consequences for administration lawlessness, or he and his administration must bear legal consequences for them, should sober future administrations that propose to embark upon systematic lawlessness.

The final point is to prohibit Reprieves and Pardons granted within 30 days prior to a resignation or removal by impeachment in the House and trial in the Senate.I welcome feedback on this idea at


Bob Fertik said...

I share your concern that Bush will abuse the pardon power to issue pre-emptive blanket pardons for those in his administration who committed torture and warrantless wiretapping on his orders.

But the odds of passing a Constitutional Amendment on anything are miniscule and it wouldn't affect Bush's pardons, so I would oppose this approach.

I would instead urge President Obama to revoke Bush's pardons using the precedents Prof. Ruckman has so helpfully collected, including Toussie and earlier precedents from Nixon and Grant.

Anonymous said...

Bob, your assuming that the Toussie "revocation" was legitimate. I don't think it was and, in any event, Toussie is very likely to challenge it in court. So, we'll have to wait for that process to end before we know for sure. In the meanwhile, Obama is never going to start revoking Bush's grants. There's just nothing in it for him politically.

Bob Fertik said...

The Toussie revocation is "legitimate" until a court says otherwise.

I can't imagine what grounds a court would use to nullify the revocation, since there are many cases of revocations and no clear lines between valid and invalid.

Until a court nullifies the Toussie revocation and sets a new precedent that withstands appeals, the President (Bush or Obama or their successors) can un-pardon anyone they please.

As for the politics of Obama revoking Bush pardons, it's safe to say that 70-80% of Americans would support Obama because they would be outraged by Bush's cynical and corrupt acts.

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