Tuesday, December 9, 2008

Checking the President's Pardon Power

If you want to start a family argument this holiday season, just bring up the possibility of the Bush administration being punished for its alleged criminality over the past eight years.  Although the president may have some supporters, legal scholars and members of Congress would agree that there is a case to be made.  Indeed, the Obama administration-elect (?) has indicated its willingness to investigate, and maybe even prosecute, some of the worst misdeeds of the 43 crew.   

The present administration has said again and again that it does not believe any of its members should be pardoned by the outgoing president, as everything they did during their tenure was perfectly legal.   Nevertheless, those that would like to investigate the outgoing administration and punish those that may have broken the law are shaken by the fact that the president retains the power to pardon at will - a power completely unrestrained by the constitution and so broad that a person can be pardoned for crimes before charges are even filed

Enter Representative Jerrold Nadler of New York.  Rep. Nadler is introducing a bill that would introduce a constitutional amendment limiting the president's pardon powers.  The amendment is fairly modest in its terms, limiting the president's power to pardon those in his administration and limiting last-minute pardons, but otherwise leaving the authority intact.  Brian Kalt of Concurring Opinions has an excellent piece about this that has sparked a heated debate in the comments.  Go forth and join the discussion!  (Also, Professor Kalt will be posting a series of pieces at CO that will examine the president's powers in the lame duck era.  Stay tuned for that series - if the first salvo is any indication, it's sure to be enlightening!)



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