Guest post: The power to pardon
Originally a comment by Screechy Monkey on Law and order.
Even if you got rid of the pardon power, there are still a host of ways that a sitting president can effectively immunize his supporters and lackeys from federal criminal consequences. He can simply order his Attorney General to order the U.S. Attorneys not to bring any such charges or to dismiss ones that have been brought. This is essentially what Trump first attempted with Flynn — of course, being Trump he arguably botched it by waiting until Flynn had already pled guilty, so Judge Sullivan was at least entertaining the possibility that the dismissal might not be legally effective. In fact, the “unitary executive” theorists would say that Trump can just order it directly without going through the AG. And of course, even if the AG balks, the president can fire the AG and find a new (acting) AG who will do it — as Nixon did in the Saturday Night Massacre.
A pardon at least has the virtue of being a clear public act that has to be explicitly documented, while more subtle means of thwarting prosecutions can be done without a paper trail. And abolishing pardons would also be throwing out some babies with the bathwater, as there really are situations where pardons and commutations are good things.
Nor do I think you can solve it by strictly forbidding the president to ever give orders to prosecutors or fire them. You can’t have unelected prosecutors running around answerable to nobody — what if some Trump-appointed U.S. Attorney refuses to resign in January and starts filing charges against Biden and Hillary and Dominion based on every dumb Kraken/QAnon/etc. conspiracy theory?
I’m not one of those people who thinks the U.S. Constitution is a work of eternal genius that cannot be improved upon — quite the opposite. It’s kind of amazing it’s held up this long as well as it has, and there’s a reason that countries forming new constitutions don’t look to it as a model very much any more. But on this issue, I think that someone should have the power to pardon, and I think that if Congress has abandoned its duty to rein in a president’s abuses of power, and the voters have abandoned their duty to punish GOP Senators who abandoned that duty, then there’s a more fundamental problem at work.
tl;dr version: Kent Brockman of The Simpsons was right. “Democracy simply doesn’t work.”
Interesting article at The Atlantic on the pardon power and how Nixon considered using (and abusing) it.
Well, true – as far as it goes – but also a bit of a false dichotomy. Most of the world has unelected prosecutors. It doesn’t follow that they’re answerable to nobody. You seem to be assuming that the alternative to election is patronage; but that’s simply not the case.
As I mentioned in another post, Steven Levitsky and Daniel Ziblatt in their book How Democracies Die, talk a lot about the importance of unwritten norms such as the norm of “forbearance”, i.e. not using the full powers granted to you by the letter of the law in ways that subvert the spirit of the law. The presidential pardon, executive orders, stacking the courts, gerrymandering, the filibuster, shutting down the government, impeachment etc. these were all either unforeseen bugs in the system or meant as a means of last resort in exceptional circumstances. When one or more parties decide that winning by any means necessary is all that matters, when these procedures become weaponized in a partisan fight to the death and a normal part of politics, we have the opposite of forbearance which Levitsky and Ziblatt call “constitutional hardball”, and they note that it rarely ends well.
It’s tempting to think that there ought to be some way around the “fox guarding the henhouse”* problem, but in the end I strongly suspect that the fatal flaw in any system – and the reason democracy is only ever temporary – is Homo sapiens…
*Many techno-optimists have dreamed of putting a Deep Thought-like supercomputer free of human biases in charge of everything, but of course it would still be people designing and programming Deep Thought…
Enzyme,
I’m really not assuming anything of the kind.
My point is simply that you have to make prosecutors answerable to someone. If it’s the voters directly via election, that has a whole host of problems (I am not a fan of electing prosecutors). If it’s someone or collection of someone elses, then that power — like pretty much all power — can be abused. There’s also a tradeoff in the sense that the more discretion you give the supervising person/institution (e.g. “prosecutors serve at the pleasure of the government and can be dismissed for any reason”), the more the potential for them to abuse it, but the more limited the supervision (e.g. “prosecutors can only be removed for criminal acts or gross abuse of authority”) the more power you’re leaving with the prosecutors.
It’s not a dichotomy; it’s a tradeoff. You can pick any point you like along the spectrum, and some points may be better than others, but there is no perfect solution that gives you everything.
I am not a lawyer but isn’t the problem with electing prosecutors is that, perversely, they then become nearly answerable to nobody? Being directly elected gives you tremendous legitimacy, especially where there is no other elected body whose job it is to curb your more lunatic tendencies. Who are you to thwart the Will of the People?
Even the French system, which gives tremendous power to its juges d’instruction only have them in post for a limited number of years and their work is being scrutinized by their peers and their hierarchy: they know that their career prospects are on the line. It’s not an ideal system (Believe me, it’s not!) but that same hierarchy is very much aware that that vigilance is their best guaranty of independance from political power.
The other problem is evidently the incredible politicization (and polarization) of American public life. You have judges and prosecutors registered as Democrats or Republicans? This is insane.You can as well kiss goodbye to any idea of separation of powers
Arnaud,
I’d say there are two related problems with electing prosecutors:
1) Most voters really don’t have the time or inclination to inform themselves about a prosecutor’s performance, which is also aggravated by the fact that it’s actually a lot harder to get good information to evaluate their performance. Consider how ill-informed the average voter is about presidential races, and multiple that by about 1,000. (This is also true for most downballot races. The American fetish for electing almost every office right down to the proverbial dogcatcher is bizarre to me.) As a result, even fairly conscientious voters have to fall back on either party labels or very crude measures of prosecutorial performance, which leads me to:
2) There’s a long-standing tendency — only being shifted in very recent years — for elections of prosecutors to be a one-way ratchet about who is “toughest on crime.” Who has the highest conviction rate, who demands the toughest sentences, who makes a big show of “perp walks” and having SWAT teams execute simple search warrants. That creates all sorts of bad incentives that aren’t about justice. Only recently are you starting to see a non-trivial number of voters being receptive to the argument that maybe bail reform is a good thing, maybe a rethinking of charging decisions and prosecutorial priorities is in order, etc.