Given the current political climate, overheated as it is, I have become reflexively averse to any suggestion to amend the Constitution. Most recent proposals have had as their objective abridgment of fundamental rights (anti-abortion, anti-gay). Some would represent truly horrible backward steps, such as the aforementioned. Some would simply be disgraceful stains on what is, with all its flaws, a fairly noble document. (Think flag burning amendments).
There are always exceptions. Representative Jerry Nadler, of New York, is suggesting an amendment that might just draw support from across the political spectrum:
Rep. Jerrold Nadler (D-NY) plans to introduce a Constitutional amendment in the coming months to impose limits on the president’s near absolute pardon power, he told an NYU-Harper’s forum on justice in the post-Bush era Thursday night.
Nadler, who two weeks ago introduced a resolution demanding President Bush not issue ‘pre-emptive’ pardons of officials in his administration, said his amendment would bar presidents from pardoning members of their own administration for official acts. The president would retain the power to pardon the secretary of state for, say, beating his wife, Nadler said, but not for actions taken in an official capacity.
While I’m sure there have been others, the only presidential pardon I can recall that seemed to right a clear wrong was that for Patty Hearst, and of course that came years after she was released from prison. The Founders clearly blew it when they gave the President such sweeping powers, assuming they intended that those powers could not be regulated by Congress. Perhaps they never imagined that the office could be taken over by a criminal conspiracy, but now that it’s happened at least twice, we know better.
The commenters at Talking Points, from which the quote above is excerpted, have a number of good suggestions about precisely what such an amendment should do. Some would merely require that any pardon be preceded by a conviction; some would limit the pardon power during the last few months of a term. Some agree with Nadler’s suggestion.
Some limits on the presidential pardon power are clearly necessary. We have seen all too clearly that it can be used as a very effective tool to stifle investigations into presidential wrongdoing. I don’t think Nadler’s proposal goes far enough. He may have forgotten that the father of the person now occupying the White House pardoned Caspar Weinberger as he departed the presidency, thereby cutting off any possibility that his own role in Iran-Contra would be exposed to the light of day. Nadler’s proposal would do nothing to stop that sort of cover-up.
It should not be hard, after a little reasoned debate (yeah, I know, these days that’s an oxymoron) to fashion a prudent response to the abuse of this power to which almost everyone would agree.
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