On Lawfare Princeton’s Keith Whittington wants to modify the Presidential Pardon Power, but is a little shy of prescriptions:
We have seen a train of abuses of the pardon power. Future such abuses could be remedied through a bipartisan constitutional amendment. It is a straightforward matter to make it explicit that a president cannot pardon himself, and it should not be hard to take pardons of immediate family members off the table as well. It should also not be difficult to require that pardons be issued only after conviction, or that pardons cannot be issued during the lame-duck period after a presidential election and before a president-elect has been inaugurated. It is possible to entrench into the constitutional text a process for considering pardons, so that presidents in the future cannot bypass the Department of Justice and issue pardons based on personal appeals by friends, family and television news hosts. It would be possible to require others to sign off on the pardon, whether existing members of the president’s Cabinet or a new body like a pardon and parole board. It would be possible to make pardons conditional on a congressional vote, perhaps comparable to the vote to override a presidential veto of legislation. If Congress and then 38 states so decided, it would even be possible to give Speaker Pelosi the power she wrongly asserts that she already has and allow Congress to subject the pardon power to statutory regulation.
There are pros and cons to any reform of the pardon power, but Congress has examples and experience with which to work. Trade-offs and compromises would have to be made, but there is no good reason why this issue would have to get bogged down in partisan disagreements (though that does not always stop us). Both Republicans and Democrats can point to past abuses of the presidential pardon that they do not like, and both should be able to foresee the possibility of future abuses that they would not like. The presidential pardon power is not the most important issue facing the country, but it is a fixable one. It is time for Congress to consider drafting a remedy to a problem and not just complain about it.
While I’ve been thinking we need something for quite a while, I haven’t had any good ideas until this morning. I think there should be a clause that reads as follows:
If the Supreme Court of the United States, upon examination of a pardon, finds that is has obstructed justice, the pardon will be reverted, and the President will be punished by loss of office and a permanent ban on being elected to such offices.
Make it blindingly obvious that abuse will not be tolerated.
It could be fun to have it be a matter that can be appealed to the Federal judiciary. At each level, the potential punishment to be meted out to the President, if they should lose, could become greater. While at District Court only the pardon may be reverted, if the President dares, on losing a pardon case and appealing to a higher Court and loses again, the punishment may be more than reversion, at the Court’s option. At the Supreme Court, the loss could include the President’s job.
It would make for nerve-wracking entertainment.
