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Monday, January 19, 2009

How Should an Originalist President Pardon? (By Bernie Meyler, Cornell Law School)

The culmination of a presidency marked by as expansive a view of executive power as that of George W. Bush should be an expansive exercise of that most unchecked of executive capacities, the power to pardon, shouldn’t it? As the days of Bush’s time in office draw rapidly to a close, speculation mounts about whether he might pardon actors from his administration, including Vice President Dick Cheney himself or others, before they have even been indicted for any offenses. If, however, Bush wishes to remain faithful to another tenet of his administration—the endorsement of originalism in the justices and judges whom he has appointed—he would do well to impose some limitations upon his own exercise of the pardoning power.

The capacity to pardon is perhaps that which most closely ties the U.S. president to an earlier line of English monarchs. Under Article II of the Constitution, the president has “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” As long as the underlying offense is federal, and an impeachment is not in question, the Pardon Clause leaves little recourse to Congress to circumscribe the conditions under which the president may furnish pardons or limit the identity of those pardoned. Because the Pardon Clause specifically delegates the power to pardon to the president, courts would also be likely to consider most challenges to presidential grants of pardon to be nonjusticiable political questions.

Nevertheless, if Bush endorses an originalist model of presidential—as well as judicial—constitutional interpretation, two English statutes and subsequent commentary upon them suggest that he ought to impose constraints upon his own pardons. Seventeenth-century English pamphlets, as well as William Blackstone’s influential Commentaries on the Laws of England, and writings of members of the founding generation refer approvingly to the limitations upon the pardon power derived from a fourteenth-century statute in the reign of King Richard II and a seventeenth-century law passed during the reign of King Charles II.

In the first of these pieces of legislation, 13 R. 2 st. 2 c. 1, King Richard II, maintained his absolute right to decide on a pardon yet simultaneously agreed not to allow any charter of pardon for “murder, or for the death of a man slain by await, assault, or malice prepensed, treason, or rape of a woman, unless the same murder, death of the man slain by await, assault, or malice prepensed, treason, or rape of a woman, be specified in the same charter.” Later glosses on this statute emphasized that the purpose of pardoning was to remit punishment, but not to allow offenses to be smothered before coming to light at all.

The second piece of legislation, 31 Car. II c. 2, sometimes known as the Habeas Corpus Act of 1679, is a statute reaffirming the writ of habeas corpus and providing stringent penalties for attempts to thwart the workings of the writ. In this statute, Parliament specified that anyone who unlawfully transported a person out of the realm for imprisonment or other purposes would be subject to severe punishment and not be able to avail themselves of a royal pardon. Subsequent commentary confirms that this law was aimed at reigning in the excesses of the use of the royal prerogative and at preventing the King from simply pardoning after the fact those who violated the procedural safeguards provided by the writ of habeas corpus.

Under this logic, anyone who participated in the extraordinary rendition of persons within the United States to locations abroad should not be able to avail themselves of the benefits of a presidential pardon. Furthermore, as the statute of Richard II suggests, pardons for serious offenses ought not to be issued without a specification of precisely what is being pardoned. Although the power of pardoning has, at previous moments, been effectively deployed as part of a strategy for achieving peace for the future, its scope cannot encompass simply obliterating the past. The American public, just as much as the English subjects of the fourteenth century, have a right to know that President Bush is aware of exactly what he is pardoning, and that both he and the electorate are fully cognizant of the events that have occurred.

-Bernie Meyler, Cornell Law School (cross-posted at http://findandreplace.blogspot.com)



Posted by Ethan Leib on January 19, 2009 at 11:46 AM in Constitutional thoughts | Permalink


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Great post; here's a far more mundane but related question: how does a pardon work for crimes that are not yet charged? I had always thought pardons had to be for particular offenses. Can a president simply pardon someone for anything they might have done to date? Since most pardons are for those already convicted this wouldn't normally be an issue but prospective pardons seem a harder case. (Though Ford prospectively pardoned Nixon, right?)

Posted by: Dave | Jan 20, 2009 12:32:31 AM

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