It's like saying you're a pacifist... except for Tuesdays when you go on a weekly killing spree.
I imagine that if we can survive and progress long enough to have real democracy and rule of law, our present system will be viewed a transitional period that, for all its very real improvements, was still structurally closer to feudalism than actual democracy.
The reason is that we need protection also from the power of judicial branch, which is abusable like any branch with power. Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone. In a democracy, all branches are checked by the others, and this is a necessary check on the judicial branch. It could be done differently (approval by Congress or some third party?), but not having a check is dangerous.
I think the pardoning thing is absolutely wrong in the US form, where it is used quite often. I think it's just crazy that you can do something illegal but if you can just talk one guy into it, you are off the hook.
The only case I see where it makes sense is that there's some corner case that everyone can agree on. But then it would involve more than just one guy on his last day in office.
That said, such a limited abuse would not justify ditching the pardon power. History has shown that not having a pardon power would have been impossible - the civil war would have lasted for decades, there would have been mass charges years after Vietnam, without the option of pardon Nixon may never have resigned, etc. A lot of these aren't corner cases, but they were necessary to still have a country.
IMHO, the by far best solution is to have it in a more limited form so it requires more than one guy.
Congress could have passed acts granting blanket pardons to all involved.
> without the option of pardon Nixon may never have resigned, etc.
It might have been better for the rule of law if he had been convicted and removed forcibly, then subject to prosecution.
That's just a slightly different method of doing the same thing. I agree involving Congress in pardons would make sense.
>It might have been better for the rule of law if he had been convicted and removed forcibly, then subject to prosecution.
It would have also involved more chaos in an already chaotic time, is that better than him resigning? I guess we'll never know.
What's chaotic about punishing a lawbreaking president? Sounds pretty lawful to me. It's how healthy democracies are supposed to operate. Pardoning Nixon set a bad precedent.
As for Nixon, not pardoning him would have led to some very messy politics (does he even quit?) in the middle of the oil crisis/price controls/etc. I have no idea how it would have played out, but the US needed at the time a functioning presidency (more than usual).
Offtopic, but for me that kid did nothing wrong - it was self defence. If he isn't found innocent by court then he definitely needs to be pardoned.
Technically, all judges can be impeached, and all judges other than SCOTUS can be appealed (there's actually a specific writ you can file claiming to be jailed unjustly, habeas corpus).
In practice, impeachment hasn't proven to be much of a check on judicial power (recall elections have probably been more effective overall), but I think the appeals process more or less works and I don't think the pardon power has added much, on balance. I think unilateral pardon power by a political official has proven sufficiently ripe for abuse that I would even support adding limits like some kind of Congressional check, but it's definitely nowhere near a top priority.
Obviously the appeals process has had plenty of failings too, the Japanese internment camps being the most famous example, another high-profile one is Lincoln suspending habeas corpus during the Civil War.
This doesn't vacate the original judgement, which is nigh-unappealable if made by SCOTUS. There are also cases when impeachment isn't warranted but a pardon still makes sense (I gave examples in another post in the thread). I think adding checks on pardon power would be enough to deal with abuse of pardon. You're right this isn't a top priority.
If my choices were status quo and status-quo-except-pardon-power-is-abolished, I would probably prefer the status quo, because law enforcement overreach is currently a bigger problem than abuse of pardon power. But you made a much stronger statement: "There's no choice in a democracy but to have something like the pardon power." I disagree with that, I could easily imagine a much more just and fair democratic system where all recourse to judicial overreach still involved a decision by a judge at some point.
As I wrote, if I had a say on this I'd go for a more limited pardon power than the current situation. I suspect our positions in the end aren't too different.
Not necessarily. IIUC the American President's pardon power is based on the British monarch's pardon power. The role of President was conceived (consciously or unconsciously) as an elected, non-hereditary monarch. He had many of the same powers - veto, commander of the military.
> Not having a pardon power allows bad judges to throw anyone they don't like into jail with no recourse by anyone.
That would require every judge in every court up to the highest court to be bad.
Perhaps, but there are parallels in other democracies.
>That would require every judge in every court up to the highest court to be bad.
Technically, only the highest court would need to be bad, and it can order the others around.
The pardon power, however, was never traditionally treated lightly, as it's use practically guaranteed you'd be right ticking off a potentially very large swathe of the populace by upsetting the smooth operation of the other branches. It was a check, undoubtedly, but one best used only wisely if for no other reason than to reassure the populace there was a commitment to faithfully executing the laws of the land, rather than everyone being at the mercy of a capricious and unstable tyrant/nepotist/other type of person you wouldn't want to see in the highest position of authority in the country.
on the many flaws of democracy: https://en.m.wikipedia.org/wiki/Criticism_of_democracy
also, the democracy index: https://en.m.wikipedia.org/wiki/Democracy_Index
Also whistleblowing cases.
I think 90% of people are basically good but don't really want to stick their neck out of line—which means rules by themselves will never constrain the 5% of people that are malevolent. We need to empower the other 5% of people who are willing to stick their neck out to do the right thing. That includes institutionally empowering whistleblowers.
Snowden committed a crime, sure, prosecute him—just give him a fair trial, for goodness' sake.
Agreed. Relying on pardoning is at best a stop-gap solution to a broken system.
Biden is on record saying this is right off the table. He will not pardon Trump.
"Ha! This comment just made me spurt my coffee all over the dog!"
You mean to say a politician is on record having made a promise, and you believe them?
Because that doesn't seem like an argument anyone would intentionally want to make.
https://www.politico.com/story/2018/01/21/president-carter-p...
Though one could also use that same pardon power to avoid prosecution for domestic terrorists that support your agenda or crimes of election fraud. So I'm definitely on the side of revoking one person's power to override the entire judiciary for arbitrary reasons.
I did find https://joebiden.com/justice/ saying:
> Biden believes no one should be in jail because of cannabis use. As president, he will decriminalize cannabis use and automatically expunge prior convictions. And, he will support the legalization of cannabis for medical purposes, leave decisions regarding legalization for recreational use up to the states, and reschedule cannabis as a schedule II drug so researchers can study its positive and negative impacts.
> Biden believes that no one should be imprisoned for the use of illegal drugs alone. Instead, Biden will require federal courts to divert these individuals to drug courts so they receive treatment to address their substance use disorder.
Quoting https://en.wikipedia.org/wiki/Expungement
> A very real distinction exists between an expungement and a pardon. When an expungement is granted, the person whose record is expunged may, for most purposes, treat the event as if it never occurred. A pardon (also called "executive clemency") does not "erase" the event; rather, it constitutes forgiveness. In the United States, an expungement can be granted only by a judge, while a pardon can be granted only by the President of the United States for federal offenses
I have no clue how Biden can promise to automatically expunge prior convictions if only judges can expunge a record.
Political promises aren't binding. So you can promise whatever. Politicians in general love to promise things that aren't even within the baliwick of the position they're running for. The one that always bugs me is California mayoral candidates promising to fix the schools, when schools aren't a function of city government at all.
NC passed a Second Chance Act which makes it easier to expunge records, says https://abc11.com/second-chance-act-roy-cooper-signed-into-l... , and "Cases dismissed after December 1, 2021 may automatically be expunged per the Second Chance Act." says https://www.swlawnc.com/blog/new-expungement-law-in-nc which adds that laws in other states have automatic removal of dismissed charges after a period of time.
This means that my quote from Wikipedia about expungement isn't the full story.
The pardon wiped the slates clean for them. That seems like a good thing?
Says who? And why?
>I imagine that if we can survive and progress long enough to have real democracy and rule of law
Why do you want 'real' democracy? What makes you think that getting rid of other non-democratic institutions, like Congress, like the Presidency, and institute Athenian-style mob rule - will make the world a better place?
I am being facetious, and I get what you mean, but do you honestly think your life would be better if this particular, and relatively minor, aspect of the Presidency would be curtailed?
Why even bother saying this?
Each of us can want / advocate for whatever changes each of us prefers in any given moment.
There's plenty of resources in the world, and within each of us, to want better for, say, our kids; more space exploration; a presidential role with fewer perks; an end to hunger; and our local street to be kept cleaner.
I understand that. I'm saying you need a reason to go through the effort of changing the constitution and a 240 year old tradition. This is why I asked what all that effort in getting rid of the pardon would do for the world. And it seems, the answer is not much if anything at all. So my argument is, maybe find something more worthwhile to concern yourself with?
It isn't, it's actually an integral part needed to make the entire thing work. The problem is when it isn't treated with the restraint due to the role it is meant to fulfill. The President is a short-cycle control mechanism. The legislature longer, and the judiciary the longest based on the sheer weight of precedent they need wade through.
Now, interestingly, and somewhat tangentially. There is a moral/traditional controversy over whether the President can legitimately abuse the Pardon power. There is a body of scholarship that hold that the Pardon is meant to be applied only when the President is acting to further the interests of the Nation.
To riff through some examples of how that plays out, (as mentioned elsewhere downthread): Civil War Confederate Amnesty, A-Okay. Carter and the draft-dodgers, a-okay, Clinton pardoning his brother on his last day in office? Absolutely not okay,as it wasn't furthering the interests of the country as a whole. Nor would Trump's pardoning necessarily qualify.
That isn't law though. That's ethos, and tradition.
But this isn’t really clarified, and in practice it’s usually used incredibly ambiguously boardering nefarious.
It's also a check of the legislative branch. If someone's convicted under an unjust law, a pardon can restore justice.
IIRC, appealing to the leader for justice has a long history that predates the US Constitution. IIRC, such appeals have been an important safety valve, and the formalization of the leader's responses have resulted in whole new bodies of law (e.g. Equity came from the King attempting to correct deficiencies in the Common Law in cases that were appealed to him, then delegating the implementation and processing the appeals made to him to members of his court).