Tuesday, January 19, 2016

Obama into Hoffa Territory?

Presidents have attached a wild variety of conditions to pardons throughout history: that recipients join the military, that they return to their mothers, that they leave Washington DC and never return, that they refrain from the use of alcohol, etc. But, what it the President attached the condition that a recipient never attend the Methodist church again?

If one views the president of the United States as the functional equivalent of the divinely ordained King of England and the pardon power as one of his unlimited, extra terrestrial powers ... sure ... why not?

But, if the pardon power is viewed as a tool of an elected president, nested in a system of separation of powers and checks and balances and, on top of all of that, limited by the Constitution and the Bill of Rights ... well ... that's quite possibly another story altogether.

The Justice Department announces that the following condition was attached to the 7 pardons and commutations of sentence granted this week:
... the commutation recipient shall not accept or otherwise receive any financial benefit, directly or indirectly, in any manner or amount, from any book, movie, or other publication or production, in any form or media, about his situation.
We understand that the President "offered" the pardons and commutations with these conditions - suggesting the DOJ believes they could have been rejected? - but how do they square with the Bill of Rights, more specifically the First Amendment? As a federal court has ruled:
The condition does not become lawful, however, by virtue of the convict's consent alone. Even though accepted, the condition may not be enforced if beyond the power of the President under Article II, Section 2, Clause One. And although we have found that the President's pardoning power is a broad and flexible one, we have also noted that it does not exist in a vacuum but rather as part of our total constitutional system.
How is this different from John Adams passing out pardons to imprisoned newspaper editors who dared criticize him (in violation of the notorious - as is now universally condemned - Sedition Act) ... on the condition that they ... behave, in the future? Can you say Jimmy Hoffa ?

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