To the Editor:
The suggestions for pardon reform in “How to Repair the Pardon Process” (editorial, Dec. 24) don’t mention the most important change to the pardon power absent a constitutional amendment: The Supreme Court should rule that the president lacks the power to pardon a person not convicted.
That change alone would go far to reduce pardon abuses. Gerald Ford’s pardon of Richard Nixon, Jimmy Carter’s pardon of the Vietnam draft evaders, Bill Clinton’s pardon of Marc Rich, and any pardons President Trump might issue to members of his administration or his family for any as yet uncharged crimes — all should be void.
A pardon is a remedy granted only after a person has been convicted. That limitation on pardons is logical — people cannot be forgiven for crimes they have not been convicted of.
Michael J. Broyde
Atlanta
The writer is a professor at Emory University School of Law.
To the Editor:
When listing the limits to the “vast” presidential pardon power, you write, “Some constitutional scholars say” that presidents “may not pardon themselves.”
This view is held not only by some constitutional scholars. Nearly 50 years ago, the Justice Department’s Office of Legal Counsel had occasion to examine the extent of the pardon power. In its memorandum opinion it concluded, “Under the fundamental rule that no one may be a judge in his own case, the president cannot pardon himself.”
The opinion is dated Aug. 5, 1974. Four days later, the president of the United States resigned his office.
Will President Trump try to do what even Richard Nixon did not dare to attempt?
William A. Shapiro
Albany, N.Y.
The writer is a lawyer.
To the Editor:
I agree that the time is right to press for changes. What I found disappointing was referencing Gerald Ford’s pardon of Richard Nixon as an example of a president “exploiting mercy for dubious reasons.”
It was an unpopular decision at the time, one that Ford made at the beginning of his (unexpected) presidency. He knew he would be facing the voters in 1976, yet he made this very courageous move, explaining later, in his autobiography, that he wasn’t motivated by sympathy for Nixon, but that it was the “country’s health at home and around the world” that worried him.
Senator Edward Kennedy recognized this in his remarks when Ford was presented with the Profile in Courage Award in 2001. “I was one who spoke out against his action then. But time has a way of clarifying past events, and now we see that President Ford was right. His courage and dedication to our country made it possible for us to begin the process of healing.”
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Presidential Pardons, Explained
President Trump has discussed potential pardons that could test the boundaries of his constitutional power to nullify criminal liability. Here’s some clarity on his ability to pardon.
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- May a president issue prospective pardons before any charges or conviction? Yes. In Ex parte Garland, an 1866 case involving a former Confederate senator who had been pardoned by President Andrew Johnson, the Supreme Court said the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment.” It is unusual for a president to issue a prospective pardon before any charges are filed, but there are examples, perhaps most famously President Gerald R. Ford’s pardon in 1974 of Richard M. Nixon to prevent him from being prosecuted after the Watergate scandal.
- May a president pardon his relatives and close allies? Yes. The Constitution does not bar pardons that raise the appearance of self-interest or a conflict of interest, even if they may provoke a political backlash and public shaming. In 2000, shortly before leaving office, President Bill Clinton issued a slew of controversial pardons, including to his half brother, Roger Clinton, over a 1985 cocaine conviction for which he had served about a year in prison, and to Susan H. McDougal, a onetime Clinton business partner who had been jailed as part of the Whitewater investigation.
- May a president issue a general pardon? This is unclear. Usually, pardons are written in a way that specifically describes which crimes or sets of activities they apply to. There is little precedent laying out the degree to which a pardon can be used to instead foreclose criminal liability for anything and everything.
- May a president pardon himself? This is unclear. There is no definitive answer because no president has ever tried to pardon himself and then faced prosecution anyway. As a result, there has never been a case which gave the Supreme Court a chance to resolve the question. In the absence of any controlling precedent, legal thinkers are divided about the matter.
- Find more answers here.
Ford’s courageous decision does not deserve to be included when discussing this current president.
Burton Dicht
Somerset, N.J.
To the Editor:
Donald Trump’s abuse of the pardon power is indeed over the top. It’s a travesty of justice.
We should amend our Constitution to remove the power entirely from the president and the executive branch — the branch that is supposed to enforce our laws, not blow them away.
If we must have a pardon power, place it in Congress, with pardons subject to a vote of approval by at least two-thirds of each house, a system more appropriate to a democracy.
Jane Langseth
Colts Neck, N.J.
To the Editor:
There is no need to agonize over the pardons recently bestowed on members of the exiting president’s inner circle. While a pardon clearly has benefits to the recipients, the past actions of Roger Stone, Paul Manafort and Michael Flynn, among others, remain public knowledge and will follow them to their respective graves. The stain is indelible, neither diluted nor erased by a pardon from someone who shares their misguided values.
Barry Warren
Port Jefferson, N.Y.