The pardon power has been so abused these past few administrations that it's clear there should be constitutional changes in the pardon power, either congressional review, or strip it altogether.
The way this is going, the President won’t need using any pardon powers, because the judges will all ask the President what the judgement should be in advance.
Your forget to insert the part where the President asks the convicted defendant if they want to finance their pardon with Klarna or Affirm in the Presidential Library's checkout page
Yeah we already have judgments that the executive branch has gone well beyond it's allowed limits and the majority of SCOTUS stance has been:
"Yeah well let the legal process play out ... in the meantime our guy gets to do whatever he wants, and you're still fired / kicked out of the country / funding cut / an so on".
If it is at all inconvenient for the most powerful folks in the country, they get any limits on their actions protected by SCOTUS ... at the cost of the people.
This is by the way literally word for word official statements of the ruzzian officials. The conviction rates in ruzzian courts are above 99% every year and the official explanation is that the prosecutors and police are so amazing and great, that only real criminals make it to the court. :)
in principle, this is true, if the case does not have a reliable basis, then it will not go to court. If we take this into account, then the magic numbers of 99% will disappear.
These are not only criminal cases, but also administrative and civil law relations.
in principle, there was no need to discuss this at all, usually those who do not understand the legal system and who have never been to court, cry about 99%.
Which congress do you want doing that review? The past several congresses have been unqualified to do any sort of constitutional reviewing in my opinion.
The U.S. is running an outdated installation of democracy. The French approach of just rebooting and reinstalling the entire thing seems like a good idea at this point. Except the populace is already badly split into warring camps.
> The French approach of just rebooting and reinstalling the entire thing seems like a good idea at this point.
Do you mean the French Revolution? If you actually read the history on that (even basic stuff beyond the "Reign of Terror") I don't think any person would want to experience that for their country. It had tons of indiscriminate violence and took a decade of chaos before they sorted out into a real government, which then resulted in Napolean's coup
(I've read that the French are talking about a Sixth, given that they've gone through several prime ministers in the past few weeks/months and seem unable to maintain a government long enough to pass anything.)
It's more likely a reference to France currently being the Fifth Republic.[1] The transition from the Fourth to the Fifth happened in 1958 without much violence.
Interestingly, the Fifth has then been running for 67 years so far, which makes the Third Republic still the longest running republic of France! I guess in around three years they'll be having a grand party.
> The transition from the Fourth to the Fifth happened in 1958 without much violence.
Quoting from the article:
Things came to a head in 1958 as France struggled to decolonize. There was strong opposition within France to Algerian independence and part of the army openly rebelled. Important generals threatened a coup unless de Gaulle was returned to power. They sent paratroopers to capture Corsica in case anyone missed their point.
The article even fails to mention Operation Resurrection. Hopefully we don't need coups every time we want a new constituent assembly.
You never want the French Revolution... except when your country is ruled by an absolute monarch and you are essentially his slave forever. The American Revolution had the advantage of having the king an entire ocean away and no other neighbor kings panicking and declaring war on you immediately.
we actually had the help of the french king as well, in a sort of "enemy mine" scenario that has resulted in towns near me with french names pronounced in american accents. We've got North Vur-sales (Versailles) and Shar-luh-roy (Charleroi) and I can't help but think that Lafayette would've gone right back home if he know we were gonna do this to his language.
Prussians, too. A lot of Europe seemed to not really feel one way or another about the plucky little colony but had very strongly defined feelings about damaging Great Britain.
I suspect the OP meant their semi-presidential/dual-executive system w/ parliament (although at this point, storming the Bastille is starting to look pretty good...).
it's misleading without context. luckily nothing humans ever do is without context and the french revolution has referred to the revolution of 1789 since...well, since 1789.
I don't mean it's misleading in that people are wondering "which revolution?". Everybody knows the French Revolution means the one involving The Terror and the death of Louis XVI.
I mean that it implies France didn't have several other revolutions.
Tech corps and ex-PayPal guys would be putting billions into making a new constitution and it would be far, far worse than what we have now. And while the French love using violence and destruction to defend their countrymen and their rights, Americans would gladly be lemmings off a cliff so long as someone told them it pissed someone else off.
For better or worse, the US constitution does not have provisions or a process for dissolving itself and developing a new constitution.
The closest thing we have is the amendment process. In theory we could use that to rewrite the entirety of the constitution[0], but good luck getting the required votes in place on any possible replacement. The bar is pretty high: amendments need to be proposed by either a vote of 2/3 of Congress, or by a constitutional convention convened by 2/3 of the state legislatures, and then ratified by 3/4 of all state legislatures.
We couldn't get that sort of agreement to pass something as theoretically uncontroversial as the Equal Rights Amendment. It's laughable to think we could pass a "new constitution" that way.
I expect the only way we could end up with a new constitution is through a bloody civil war, or some sort of coup. Hopefully no one wants something like that, though. I certainly don't.
[0] Technically the entirety of the constitution can't be amended; Article V, Section 5 prohibits an amendment from changing each state's equal representation in the Senate. Though I suppose a "rewrite amendment" might get around that by preserving the Senate as-is as a ceremonial body without any power. That would certainly violate the spirit of that wording in Article V, so I imagine it would be challenged in court.
We don’t need a full rewrite. Despite the divisions in this country, there are a couple things that most people agree on:
- Corporate money should be out of politics
- Gerrymandering should be stopped
If we had amendments for these two things, it could change A LOT. Congress might actually be able to function. Corporate corruption could be prosecuted. We might be possible to put meaningful limits on corporate power.
Of course, the devil’s in the details. How do you write amendments for these two things in a way that actually accomplishes the goals? But though it would be difficult, I don’t think it would be impossible.
Can we throw some form of ranked choice voting in there as well? As someone unhappy with either major party, I want the ability to vote what I actually want with a backup vote indicating what I absolutely don't want under any circumstances.
It's worth noting that Article V, Section 5 doesn't prohibit itself from being amended away. So you just need the constitutional convention to refer two new amendments: the first one stripping the restriction itself, and the second one to do what the restriction prohibited being done.
So theoretically if any one of the party in american system gets 2/3rd people of the same party and they all agree to one person and try to amend the constitution itself to add whatever they want, can't they theoretically create a purest form of dictatorship (one which lasts forever instead of just 5 years)
I mean given how much is already happening in America, I am just curious from a legal standpoint if there could be done something like that (forgetting the insane backlash but still), what could the president of america do to completely sieze the constitution ?
Unfortunately, eliminating the Senate (or more precisely, each state's equal representation in the Senate) is the one and only thing that the constitution forbids an amendment from doing (see Article V, Section 5):
> Provided that no Amendment [...] no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
(Awkward ellipsizing, but the elided text is another thing that's not allowed, which expired in 1808, and is otherwise thankfully no longer relevant.)
Better voting systems can be implemented, but since the states run federal elections, each state would have to pass legislation requiring a different voting system. Of course I expect all 50 would not agree on which alternative system is the best, which may or may not matter. And I doubt red states would want to change, as voting systems that better reflect the will of the electorate tend to disadvantage the GOP.
Eliminating gerrymandering is difficult, because it's hard to objectively define what is and isn't a gerrymandered map. There have been some attempts to do so, and I would say they've even been somewhat successful, but people can reasonably disagree with the methodology and thresholds used.
The Citizens United SCOTUS ruling and precedent absolutely needs to be reversed; agreed. Corporations are not people and should not get first amendment protections. Or any kind of protections outside any that are defined in regular law.
Another thing we need to do away with is the Electoral College. Presidents should be elected based on the national popular vote, not by per-state winner-take-all proxies, with vote apportionment that wildly advantages some states over others. The National Popular Vote Interstate Compact would effectively do away with the EC if states "owning" at least 270 electoral votes were to all sign it, but that's unlikely to ever happen. (Then again, it's more likely that the Compact would achieve that threshold than the passing of a constitutional amendment to abolish the EC.)
We should amend it [0] so that any state may subdivide within its own borders without the consent of the Senate, provided that no subdivision is smaller (less-populous) than the smallest current state.
In other words, small states don't have to give up their disproportionate representation in the Senate... but they cannot use that power to monopolize being small either. Any state above a certain size (>2x the smallest) may decide that its constituents are best-served by fission.
This adheres to Article V, Section 5, since no state is being deprived of "equal suffrage": Each state has 2 senators, just like always.
This is all regurgitated speech from a voter in a urban area. 99% chance you live in one of the major metro regions and vote mostly like your neighbors.
For the other half the country, we really don't want to Federal laws to be decided by people in other states that don't share the same values. This is why state rights exist and will not be removed (at least in our lifetime).
This is all speech from a voter in a rural area, happy they get to tell the rest of the country how to behave despite being a minority of the vote.
Allow me to be "aggressive" as well:
For the other 60% of the country, we don't want Federal laws held up by people in arbitrarily drawn political districts and don't share our values regarding human rights and dignity. This is why, while states do retain broad rights to administer their internal affairs, spending and education, federal laws should be altered with a majority, excepting certain fundamental laws like the Constitution.
> For the other half the country, we really don't want to Federal laws to be decided by people in other states that don't share the same values.
Funny people can look at Arabs or Indians and identify “these people have a diametrically opposed culture and cannot peacefully coexist with me”, but can’t extended that to people that look like them and are also diametrically opposed.
It’s delusional to try and maintain a country that’s developed such opposed cultures. You can try to force peace for a while, but it always bubbles back up.
From fiction, we have Clancy's sudden loss of the majority of federal elected officials which allowed for a fresh start. However, that's subject to having governors submitting senators while having elections for congress. Starting from a clean slate would be the only fix. As it is now, it's who is willing to kowtow to the biggest backers to get them over the line and stay in office. On top of the gerrymandering that all but ensures the party in control stays in control, I see no change to the status quo in my life time without an uprising.
The Senate is not subject to garrymandering and if we fixed the issues with the House (literally via any mechanism) the Senate would immediately go back to being the vehicle used to prevent the will of the people (see the Senate under Mitch McConnell any time the House was under Democrat control)
Until the Dem party fixes their brand and wins back some of the Senate seats they used to control in the 90s and early 2000s there will be no positive progress.
The Senate is in a permanent state of gerrymandering.
There were only 13 states when the Constitution was ratified. It was never envisioned to be as disproportionate as it is today, with California's two Senators representing 40 million people vs. Wyoming's 0.6 million.
In 1776, the population of Virgin was about 500K, Pennsylvania and Massachusetts were about 270K, and Delaware and Georgia were about 50K each.
The founders knew exactly what they were agreeing to when they gave each State two Senators. It’s supposed to be a separate check on the Federal power to force a wide swathe of consensus.
No, I like the way the Senate runs in theory. Equal representation for the states regardless of size. Only if it's alongside the house with proportionate representation.
That seems like a good theory that would keep itself in check.
In execution it's an absolute shit show, I'll give you. But I do believe the theory is sound. With the house and the Senate we get the best of both worlds.
Gerrymandering is particular powerful because Congress has refused to reapportion representatives for over a century. They just decided to stop following that part of the Constitution back in 1929. We still have the same number of representatives as we did when we were less than a third our current population. Each representative now covers 20 times more people than when the Constitution was ratified.
Yes and: our first-past-the-post form of elections begets gerrymandering.
My future perfect world:
proportional representation for assemblies (eg US House),
some arbitrarily low number of reps per citizens (200k - 400k?),
no upper assembly (eg US Senate),
approval voting for executive positions (eg Mayor, Sheriff, President),
only public financing of campaigns,
limit campaign season to maybe 6 weeks.
Friendly amendments to my wishlist cheerfully accepted.
There's so many reasonable, impactful reforms which could be done. And my wishlist is based on my (imperfect) understanding of best available (political) science. And I'm all ears about SCOTUS reforms. And I doubt any reforms will stick, so long as our gini coefficient is so out of whack (wealth vs democracy, the timeless struggle).
Approval ratings for Congress, barring a post-9/11 spike, have been under 30% for most of my life. By this standard I'd say we're in the middle of the end.
> If we can't figure out how to get a Congress that most people believe in then I worry that is the beginning of the end for this government.
We know, from comparative study of existing representative democracies, how to do that better (have an electoral system for the legislative branch that provides results that are substnantially more proportional than under the current system); what we don’t have is a practical way to get from where we are to where we need to be given the construction of the electoral systems in the states and nationally and the politicians and interests that has entrenched and the Constitutional amendment process.
I feel like we'd have a better idea of what congress is qualified to do if they ever actually tried to do something but they seem to have broadened their role from "prevent executive overreach and govern" to "prevent govern". Congress is where you send something if you want to be sure it doesn't happen.
That being said, there's always the option of just getting rid of the president's ability to overrule the people on criminal matters. We could probably go after state governors as well, that's just as rife with abuse.
> Which congress do you want doing that review? The past several congresses have been unqualified to do any sort of constitutional reviewing in my opinion
States can reject dumb amendments. Congress proposes amendments, the states ratify them [1].
Trump has his executive orders explained to him right before he signs them.
Yesterday he was asked about this pardon and barely knew what was going on:
“I believe we’re talking about the same person, because I do pardon a lot of people. I don’t know. He was recommended by a lot of people,” Trump said.[0]
The Biden autopen-shadow-government conspiracies are hilarious, though. Every accusation is a confession with MAGAs.
I remain amazed at how, again and again, no matter how specific and unique an abuse by the Trump administration is, it is always, invariably, Really Joe Biden's Fault. Like, the frame has been adopted by the MAGA base, but also the cranky left. The media does it too. Here on HN bothsidesism is a shibboleth that denotes "I'm a Serious Commenter and not a Partisan Hack".
But it leads to ridiculous whoppers like this, and ends up in practice excusing what amounts to the most corrupt regime in this country in over a century, if not ever.
No, this is just bad, on its own, absent any discussion about what someone else did. There was no equivalent pardon of a perpetrator of an impactful crime in a previous administration I can think of. I'm genuinely curious what you think you're citing?
>But it leads to ridiculous whoppers like this, and ends up in practice excusing what amounts to the most corrupt regime in this country in over a century, if not ever.
Amen. Preach it, brother!
>No, this is just bad, on its own, absent any discussion about what someone else did. There was no equivalent pardon of a perpetrator of an impactful crime in a previous administration I can think of. I'm genuinely curious what you think you're citing?
I don't know what the poster was referring to, but I AM mad at Biden for pardoning his family. It's a molehill of an issue compared to the current administration though.
I would be very mad at Biden pardoning his family if the next president was going to be Bush. With all of Trump's calls for retribution, and actions in that direction since the election, it is hard to blame Biden for trying to shield his son from unjust exercises of the law, while Trump was publicly touting him as one of his biggest enemies.
> Here on HN bothsidesism is a shibboleth that denotes "I'm a Serious Commenter and not a Partisan Hack".
HN users don't necessarily do that because they want to. They might do it as a pre-emptive defense mechanism against the brigades of de-facto censors that roam the site.
Moderation via populism is an anti-feature on its face, but Hacker News has the worst possible version of that sort of feature by making downvoted/flagged comments completely hidden unless you are logged in and showdead.
It's a pretty horrendous system if you're interested in good faith and honest debate.
I have showdead enabled, and in my experience, the only dead comments are ones which violate the site guidelines or are otherwise Bad Posts regardless of the political affiliation of the poster. Stuff like this:
I also have showdead enabled and in any remotely controversial thread, among the uncontroversial Bad Posts you will find a reasonable number of posts that are well argued and have effort put into them, but get downvoted anyway.
There are a number of reasonable posts in this very thread that are either already dead or on their way out - and I don't even agree with some of their positions.
The fact that this arguable, but clearly reasoned and expressed comment is now deep gray kinda puts an exclamation point on the argument, I'd say.
(Honestly I think the moderation paradigm at HN has some bad externalities too, but really this isn't a solvable problem in the general case and nowhere does it well. The showdead mechanism at least makes the censorship visible to those who know where to look.)
It does. And it's completely understandable why, from a game theory point of view.
The censors want Hacker News to keep its reputation as a place where you can have debates in good faith, while allowing their censorship powers to shape the conversation.
Pointing this behavior out upsets the calculus by warning their potential marks. So of course they want to strategically hide it.
When Obama really increased the number of pardons, a lot of contemporary opinion writers said stuff along the lines of "this is a dangerous precedent and we're lucky that the pardons are fairly popular and sane." Now we're seeing unpopular, not sane pardons.
When democratic norms erode like pardons becoming more acceptable, it's like laying tinder and kindling for a fire. You still need a fire; a bad actor who is willing to light the material on fire. That bad actor is Trump. But the warnings from abusing these limitations from previous administrations was exactly for this moment. Nobody is saying Trump isn't the bad one, he is. But the conditions were laid for him. Now we need to survive him.
When we look back at Roman Senators and Emperors, it's often hard as modern people to point to one, single bad figure because we don't have a lot of contemporary thought or reading from the time. But when we look back we can see the seeds of "decline" in eras rather than single figures.
I don't buy it. A president that will literally direct his AG in public to prosecute his political enemies is simply not bound by norms, period. To pretend that he'd never have pardoned Zhao but for Obama's "increased number of pardons" is, to be blunt, ridiculous on its face.
And in context, you're doing exactly what I mocked above, tut tutting about civil behavior and norms and The Discourse while the system burns down around you.
But don't worry! You can always take solace in the fact that it was Really Barack Hussein Obama's Fault.
> And in context, you're doing exactly what I mocked above, tut tutting about civil behavior and norms and The Discourse while the system burns down around you.
I'm not sure what I'm supposed to do then. I agree Trump is bad. Am I supposed to just say that 3 times and click my heels and then he'll go away?
These are observations designed around trying to make sure, once Trump is gone, that we don't get another Trump. I can't change the current President and this constant purity testing about hating Trump changes nothing.
The reason Trump will have to blatantly violate the Constitution if he tries to run again is because the country was so spooked after FDR's third term that it limited Presidential terms. One could have made the same argument then, the only reason FDR ran a 3rd term is because he's FDR and a different person wouldn't do that. But that amendment is why there's a bright line around a 3rd term now.
Why are you reading equivocation there? You're being way too defensive. Just because Trump is the worst doesn't mean other things aren't also bad, just less bad. Are you implying that I'm not supposed to talk about anything other than how Trump is bad? Again what's the point of this purity testing?
If I caveat my statements a million ways to convince you that I'm not equivocating then will Trump stop being President?
Refocus you're attention. The problem is not with the pardon power. You said:
> That bad actor is Trump. But the warnings from abusing these limitations
But that's the thing, the pardon power is not supposed to be limited. How would you limit it? Who would actually tell the President "No" and on what authority? The obvious choices are Congress and the Courts but they already checks to balance the the President. That's why they can't check it -- the pardon power is the President's check on them (along with the veto power).
Hamilton said:
"Without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."
That's what it's for. After all the process, if justice is not done, and there's no way to undo it, then justice will not survive and there will be no confidence in the system. But with great power comes great responsibility, so you need someone very responsible in that position or else it doesn't work.
So then how do we fix it if not by adding laws and rules? We don't elect people like Trump, who think they are above the law. That's it. I know it seems kind of glib but it's not a high bar to just avoid malignant narcissists.
The reason Trump is abusing the pardon power is because he does not consider what he's doing an abuse. He sees that he has the "right" to do it under the Constitution, and to him, anything he has the right to do, he can do. And you know what, despite him being abusive he does have the right. But that's the thing, we gave him that right, and we can take it away and give it to someone else who won't abuse it.
That is the actual check on the pardon power, but that's on us. It's on us because Trump abused the pardon power in his first term by dangling pardons in front of Paul Manafort when he was being investigated by the DOJ, so none of this should be a surprise to anyone. Obama's "abuses" and Bidens "abuses" are on everyone's lips here, but not a single word for Trump's 1st term abuses (mine is the first mention of the Manafort pardon in over 1000 comments). So if you really want the root cause of his power abuse beyond his psychopathology, it's that -- because not only did we not care he did that, we actually reelected him as he promised to abuse his power during the campaign, so why wouldn't he actually do it?
> So then how do we fix it if not by adding laws and rules? We don't elect people like Trump, who think they are above the law. That's it. I know it seems kind of glib but it's not a high bar to just avoid malignant narcissists.
Right but he is the President. I didn't vote for him. I donated and canvassed for the Harris campaign. But Trump won. So what are we getting by making 1000 internet comments of which 800 are about how bad Trump is?
This whole exchange reminded me why I don't participate in politics on HN. It's all just venting. I'll stick to doing things like canvasing and not reading the anxieties of HN commenters.
> the established politicians do not like him and did everything they could to stop him from running
Again, this is a excuse-making whopper. The republican aisle in the senate refused to convict him twice, which would have prevented him from running. I won't argue "do not like him" in the abstract, but in practice established politicians in his party are 100% behind the guy.
Usually a pardon is for a conviction with some level of ambiguity or prosecutorial misconduct. Hunter himself admits to the privilege of being pardoned.
The power to pardon needs to be removed all together. All it does is show that the President overrides the department of justice. How anyone ever thought this should be a thing, I have no idea.
I think a congressional pardon power to allow national leniency on previously accepted sentences that are now viewed as unjust might be worth holding onto. It being such a casual presidential power has made it ripe for corruption for a long time but I would weigh that with civil rights era pardons for sham trials - I think we do still need a national sanity check relief valve for local injustices.
And the dysfunction of congress probably works in our favor here since pardons should be exceptional - not routine. A routine pardon is just a demonstration of the justice department failing at a systemic level.
> I think a congressional pardon power to allow national leniency on previously accepted sentences that are now viewed as unjust might be worth holding onto.
That sounds like a perfectly reasonable thing to do. For the branch of government in charge of making and changing laws.
It sounds more fit for the branch of government in charge of enforcing the laws. Specifically, with laws that are made by the branches responsible for making/changing them, which would be ridiculous on their face.
If the branch responsible for making and changing laws was also responsible for the reversion of enforcing those laws - effectively what a pardon is - then there's absolutely no check on gratuitous law being passed.
> If the branch responsible for making and changing laws was also responsible for the reversion of enforcing those laws - effectively what a pardon is - then there's absolutely no check on gratuitous law being passed.
I mean, it is a normal thing for a legislature to remove and amend old laws. That's not "a check," but it's a normal part of what it means to be a legislature. You're not just appending new laws, you're maintaining the entire set of laws.
And as for checks, judicial review is the obvious one.
Neither are steadfast. If we relied on either the Legislative or Judicial branch to take action granting cohesive resolve for Confederates post-Civil War - in lieu of Lincoln's 12/8/63 amnesties as a power vested to him through executive pardons, the Union would have collapsed. Outside of amnesty from Lincoln, it took the next acting branch - the Legislative - 7 years after Robert E. Lee's 1865 surrender for their actions regarding the Civil War to be seen (1872 Amnesty Act).
And, in the systematic event that a law is passed that is grotesque - from the legislative, or in the individual event that a miscarriage of law is applied to an individual case - from the judicial; we need a quick check and balance for either scenario - and the Executive branch is (typically, and on average) the fastest-acting branch of the 3. Lest, one bad-faith branch can reliably depend on its complementary power to be too slow to act (which is happening now, in many ways).
As a result, the executive needs to add tension for either event, and just "Legislative <-> Judicial" having checks against one another in relation to laws, and the judicial proceedings concerning the laws, is not enough.
I heard the intention was that sometimes it's against the public good to prosecute some people even though they have comitted crimes. Good examples of it being used as intended was pardoning the perpetrators of the whiskey rebellion, the confederate army, vietnam draft dodgers and more controversially, Nixon. I guess it's also intended in cases where obvious miscarriages of justice have been committed. It made sense in 1785 or whenever but along with lots of the rest of the constitution it's long obsolete and has been twisted, stretched and mangled into a hideous caricature of itself over the centuries.
> The power to pardon needs to be removed all together. All it does is show that the President overrides the department of justice.
The Department of Justice is subordinate to the President as part of the executive branch with or without the pardon power; if you want something other than "the President overrides the Department of Justice" as a matter of Constitutional law rather than an intermittently-observed convention of restraint (which Trump absolutely has not observed outside of the pardon power), you need a fundamental reformation of the Constitutional structure of government, far beyond the elimination of the pardon power.
While it’s true that the Department of Justice sits within the executive branch, the assertion that it is simply “subordinate” to the President - functioning as his personal legal arm - is an oversimplification that misses both the design and evolution of constitutional governance.
The President does not have unlimited authority over the DOJ. The DOJ’s powers are exercised pursuant to laws enacted by Congress, and its officials - especially the Attorney General and U.S. Attorneys - swear oaths to uphold the Constitution, not to serve as personal agents of the President’s will.
The Supreme Court has repeatedly affirmed that while the President may remove executive officers, he cannot lawfully direct them to commit acts that are unconstitutional, obstruct justice, or violate statutory mandates.
The constitutional structure also relies on normative independence - a separation within the executive branch that maintains rule of law. This is not a “convention of restraint” but an operational necessity derived from the Take Care Clause (“he shall take Care that the Laws be faithfully executed”). That clause doesn’t mean “whatever the President says is law”; it means the President must ensure that the law itself is enforced faithfully, even when doing so constrains his own interests.
Finally, while the pardon power is broad, it’s not the linchpin of executive authority over the DOJ. Removing or limiting that power wouldn’t change the fact that the DOJ’s prosecutorial discretion must still be exercised consistent with law, ethics, and constitutional constraints - not simply the President’s personal preferences. Our system is not designed for a monarch with “absolute control” over prosecutions. It’s designed for a chief executive bound by law and accountable through oversight, impeachment, and ultimately, the electorate.
> While it’s true that the Department of Justice sits within the executive branch, the assertion that it is simply “subordinate” to the President - functioning as his personal legal arm - is an oversimplification that misses both the design and evolution of constitutional governance.
The idea of the republic as opposed to a monarchy is that no part of the government is anyone's personal...well, anything...but that doesn't really negate the degree of control the President exercises, both in theory and in practice barring highly variable personal restraint, over the DoJ.
> The Supreme Court has repeatedly affirmed that while the President may remove executive officers, he cannot lawfully direct them to commit acts that are unconstitutional, obstruct justice, or violate statutory mandates.
That doesn't mean the President doesn't override the DoJ, it means the President doesn't override the law.
> The constitutional structure also relies on normative independence - a separation within the executive branch that maintains rule of law.
Yes, that it relies on this but does not actually provide any mechanism by which it can effectively be assured is the fundamental design issue I am referring to being necessary to address if one wants "the President overrides the DoJ" not to be a simple fact independently of whether or not the pardon power exists and is vested in the President's discretion.
> Finally, while the pardon power is broad, it’s not the linchpin of executive authority over the DOJ.
I literally said that the pardon power is irrelevant to that, which is the exact opposite of describing it as the lynchpin.
> Removing or limiting that power wouldn’t change the fact that the DOJ’s prosecutorial discretion must still be exercised consistent with law, ethics, and constitutional constraints - not simply the President’s personal preferences.
To the extent that is true, that is only a negative constraint on prosecution applied by the courts, it can never compel a prosecution that the executive has declined. (Congress, of course, could punish the President for preventing prosecutions, via the impeachment power, but that’s hardly a substitute for real independence from the President of all or part of the prosecutorial power if that is what is desired. Or, for that matter, much of a remedy at all if more than 1/3 of the Senate is on board with the President's conduct.
Despite abuses of it, there are still too many reasons to need it, like when President Franklin Pierce pardoned an abolitionist for harboring fugitive slaves, or when George Washington pardoned Revolutionary War vets involved in the Whiskey Rebellion.
Better yet, there are a ton of cases since the 1980s prosecutors exploiting technicalities and mandatory minimum sentencing laws to get nonviolent drug offenders imprisoned for 10+ years on simple possession (not to to sell drugs, not PWID, just possession).
The word "nothing" is completely inappropriate in describing Watergate and Iran-Contra, among the worst political scandals in American history, both involving gross abuse of executive power.
I certainly don't see how the pardon of Changpeng Zhao is worse than the pardon of President Richard Nixon or Secretary of Defense Caspar Weinberger. Crimes committed in office by the highest officials in the US government are a whole different level than crimes committed by some corporate CEO.
Ford at least had the misguided excuse of wanting to put the scandal behind and focus on the future.
Trump's pardons include hundreds of literal insurrectionists, promises to pardon in exchange for not testifying against him (witness tampering), and other blatant corruption. He fired the head of the OPA and installed a political hack to speedrun awful pardon choices and made a mockery of the process in a far more corrupt and damaging manner than anyone before him, and it's not even close.
> Ford at least had the misguided excuse of wanting to put the scandal behind and focus on the future.
I'm more concerned with the effects of the pardons on the country and on democracy than I am with judging the rectitude of the pardoner. Allowing the President to escape the law set a terrible precedent with obvious repercussions into the present.
I'm not trying to defend Trump. My point is that the stage was set for Trump. Abuses of executive power, of which I've given two egregious examples—Watergate and Iran-Contra—have been swept under the rug for far too long. To always "put the scandal behind and focus on the future" is to encourage future misbehavior. I would note that in stark contrast, former French President Nicolas Sarkozy has just gone to prison.
I'm more concerned about the effects of this constant "both sides" legitimization of fascism and the constant shift of the Overton window than I am about the effect of pardons.
Trump is the kind of actor who will explore the entire space of pardons; the history of this does not matter. He does not know the path-dependency of what will be tolerated.
> pardon power has been so abused these past few administrations that it's clear there should be constitutional changes in the pardon power, either congressional review, or strip it altogether
Strip it. I also started on the line of Congressional review (or pardons only activating on the consent of the Senate). But I concluded the entire power is out of place.
If the courts overreach, address it through legislation. Congress can annul sentences through law, no special pardon power needed. If a law is unfair or being applied unfairly, moreover, it should be fixed comprehensively.
There isn’t a place for one-man pardons in a republic. Even the imperium-obsessed Romans didn’t give their dictators, much less consuls, automatic pardon power. Caesar had to get special legislation to overrule the law.
Biden abused pardon power. So has Trump. Both parties have good reason for passing an amendment through the Congress. This is probably in my top 3 Constitutional amendment we need in our time. (Multi-member Congressional seats, popular election of the President and changing “the executive Power shall be vested in a President” to “the President shall execute the laws of the United States.”)
Wasn't that because there was a high chance of trump going after biden's son when he was in power, making up whatever charges he needed just as a power play?
He only pardoned his son after Trump was elected, because Trump made it clear that he was going radicalize the DOJ to do extremely punitive things to his enemies. And that's exactly what has happened.
Up until the election he seemed very willing to let Hunter face the music.
honestly? I think between this and hunter biden you could probably drum up some bipartisan support as long as you don't let either side find out that they accidentally agree with the other. I'm of a mind that the power of the pardon is one of many (many, many, many) ways that the so-called "egalitarian" founding fathers made sure to preserve the power of the aristocracy over that of the people. After all, a conviction has to come from a jury, and that means that a pardon is by definition the powerful elite overruling the people.
The Hunter Biden pardon was necessary because it was clear that despite his admission of guilt, he was not going to receive a fair punishment. The Republican party leadership was very open in expressing their intentions for him, and had _already_ circumvented the judicial system to give him cruel and unusual punishment.
Would be nice if Trump only pardoned people who the incoming administration explicitly said they would target, after years of constant harassment and misinformation.
I think I would support those pardons even though I think Trump and his family and his cronies are acting the way really bad people act.
Taking the above scenario as license to sell pardons for person gain is such a stretch it looks like bad faith to me.
IDK, I think Carter's pardon of draft dodgers was a pretty good use of the pardon power.
The problem seems to be that we have unjust laws and punishments. We should have some way to apply mercy in that case. For example, I (hope to) see a future where people jailed for MJ related crimes get a mass pardon.
Chelsea Manning. Prosecuting her and other whistleblowers instead of the officials they blew the whistle on was a mockery of justice. Though that wasn't the stated reason for the commutation, it was long overdue.
I mean there are lots of people arrested on effectively political charges, and it's good to be able to reflect on it years later and get them out of jail. I'm not convinced Changpeng Zhao's charges would have ever been brought against him if the Biden admin didn't go so hard against crypto, I'm happy to see him pardoned. Hopefully next Trump can get whistle blowers like John Kiriachou
Why not? A large portion of the punishment is just going through the court system. For a significant amount of time all you can do is stress about your next court date, you can't get work and burn through your savings. In his case he has already paid tens of millions in his money and the company paid billions. He spent four months in jail, and has spent years out of work.
By the time a pardon comes the persons life is usually already in deep distress, and whatever they were working on is likely already over. I don't see why it's such a tragedy to let some people get pardoned who maybe don't deserve it.
That might be true, but CZ is a good candidate for a pardon. Did you know before Gensler went after him at the SEC he asked CZ for a job and was rejected?
To be rejected for a job and then pursue a criminal complaint against the person who rejected you has a lot to do with things like rule of law and corruption.
I agree it is a good pardon, the past administration + SEC were not laying a foundation of up to date commodity/currency/securities laws, they were enforcing by prosecution. This is not a way to run a country.
No, government is the greatest threat to liberty. If the guy in charge of prosecuting feels the need to not just not prosecute, but actively protect someone from the state, then we really really don’t want (who? his unelected subordinates?) prosecuting people. It’s supposed to be an “err on the side of” failing to prosecute criminals. The whole point is yes… sometimes we want criminals to get away with crime, because it’s better than the alternatives.
What is the alternative? One of them is the public vote for a leader, the state destroys that leader (or his allies, etc) and then what? Do we think the public just says “Oh, well, I guess we didn’t pick the right guy?”
And the prosecutors will ask who to prosecute.
Finally only fair justice!