Limits on the President's Pardon Power
"Labour to keep alive in your breast that little celestial fire called conscience." George Washington.
As the Department of Justice investigation into the 2016 presidential election rounds up more witnesses and documents, and the New York U.S. attorney's office pours through thousands of documents and has access to key Donald Trump confidants including his personal lawyer, key Trump business associates and Paul Manafort, the possibility of criminal prosecution of the President intencesfies. Consequently, the issue of the president's pardon power and whether the Constitution gives him the ability to pardon himself, a family member or close confederate, is a major current event topic.
Many commentators believe there are no limits on the president's pardon power. However, in a political system that is unambiguously predicated on checks and balances this conclusion makes no sense. We all learned in High School that there is a check on every power in the different branches of government. Why should the pardon power be any different?
The Constitution states, "The President shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."
Alexander Hamilton's interpretation of the pardon power, contained in Federalist Papers #69 is illuminating, "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law." Punctuating this statement, Hamilton argues that the President would stand upon no better ground than a governor of New York.
The United States Supreme Court meanwhile, has been consistent that the meaning of the words of our Constitution must be construed with reference to their meaning at the time of ratification. The Court has held that "when the words to grant pardons were used in the constitution, they conveyed to the mind the authority as exercised by the English crown."
At the king's coronation in his oath he acknowledged and swore that his pardon power was limited to "cause justice to be served."The Supreme Court describes the pardon power as one to be exercised to afford relief from undue harshness or evident mistakes in the operation of law. In other words, a check on the judicial branch. However, this check would be an absurdity if it was abused by the office Hamilton described as the Chief Magistrate of the Union.
The more restrictive interpretation of the pardon clause is that the power to pardon is not available when a party is subject to impeachment, including the president pardoning himself or members of his administration or sitting members of Congress who are subject to impeachment. Richard Nixon knew this all too well.
The difficult issue rests in any pardons for his children, son-in-law or current or former members of his administration not subject to impeachment.
It is extremely important that under English law and American jurisprudence that there is a court of equity. This is part of our development of the common law. In fact, the most important Supreme Court ever written, Marbury v. Madison noted that even though judicial review is not specifically stated in the Constitution, judicial review was the very essence of judicial duty and the role of the judiciary would be meaningless without such a review. This point was emphasized by pointing out the oath that judges were required to take. "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States."
Actions taken by a judge in equity normally are constrained to exercising his/her sound discretion and are subject to be overturned if those actions are an abuse of discretion. This equitable concept is ingrained in our common law and has been from before the Revolution. The exercise of a pardon is an equitable power, why would the founders allow it to be unchecked even if it is an abuse of power? Our system of checks and balances ought to have a judicial remedy that remedies a clear abusive use of the pardon power or else the law as observed by the Marberry court would be "worse than solemn mockery".