Dec 24th, 2008 at 10:28 am
Pardon Him
The Presidential pardon power is just hanging out there begging to be abused and so of course you get stuff like this:
President Bush pardoned a Brooklyn real estate developer accused of scamming hundreds of poor, minority homebuyers — and whose father donated $28,500 to the Republican Party this year.
Bush pardoned Isaac Toussie, 36, two days before Christmas in a gesture of mercy that outraged ex-customers who said they were duped into buying overpriced, defective homes.
Ir’s really outrageous. And Bush isn’t the first president to make outrageous pardons by any means. On the contrary, it’s becoming the norm. And someone ought to put a stop to it.
42 Responses to “Pardon Him”
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December 24th, 2008 at 10:48 am
Be careful what you wish for. That alternative is Mitt Romney’s approach – no pardon for any reason whatsoever. It’s uniform certainly, but not really “fair” in the larger sense of the word.
December 24th, 2008 at 10:58 am
There are other options, Francisco. Pardons only for certain types of crimes, pardons requiring a Congressional approval, a limit on the number of pardons a president may sign…
… I don’t know if any of those are good ideas, but I came up with all three off the top of my head in about 10 seconds. Surely we could find a middle ground *somewhere*, if we wanted to.
December 24th, 2008 at 11:00 am
Pardons requiring congressional approval would be worse than no pardons at all. Beyond that, I’ll just say that this guy is already out of jail, and has been for years now.
December 24th, 2008 at 11:04 am
The post is impulsive and unthinking. This power is constitutional, so it’s both hardly worth discussing the chance it will be changed and dangerous to think about what would emerge from the process. It’s also not worth discussing given that we’re probably talking a handful of sleazebags every eight years, all of whom are guilty by definition of the pardon power.
All you can do, other than to explore how a pardon reveals a president’s convictions (in this case, the GOP admiration for bilking the public) is to probe how the media handles it. Will they play up Marc Rich indefinitely, reliably supporting the GOP attack squad? Will the Times today mention these guys, rather than devote its full article to someone who supported the cause of Israel and died long ago?
December 24th, 2008 at 11:07 am
I agree with Francisco. I’d rather see a more generous use of the pardon power, even if it means an increase in “outrageous” pardons.
The only pardons I’m truly bothered by are pardons of a president’s subordinates in the executive branch, because this creates lousy incentives for future executive branch employees.
I’d like to see a constitutional amendment something like this:
XXVIII. The pardon power of the president shall not extend to offenses committed by anyone in the employ of the executive branch, including the Office of the Vice President, at the time the offense was committed, until eight years shall have passed since the time of the offense.
December 24th, 2008 at 11:08 am
Beyond that, I’ll just say that this guy is already out of jail, and has been for years now.
Scooter Libby is trying hard to get a pardon and he never went to prison at all.
December 24th, 2008 at 11:19 am
I actually disagree with this, pretty strongly.
In any society, there will always be profound, splitting fights. People will end up on different sides of an issue, come to violence, and the problem is that after the event passes, the question of “how do we deal with them” has the potential to continue to tear society apart. Southern secessionists, Vietnam draft dodgers, Loyalists…how do you go forward as a society when people who can’t forgive each other still have to live with each other? How do you keep this war from going on forever?
I think the kingly pardon power of the President is uniquely wise–it allows him to basically turn an open wound into a piece of history. Once a pardon is issued, there’s nothing to be DONE anymore about it. And, if you’re pissed about it, the person to be REALLY pissed off at is the powerless ex-President with secret service protection, not the neighbor down the block who you might decide to string up. It’s basically a national order to “get over it,” and it makes pariahs of people who would carry a destructive grudge.
It’s not fair, but sometimes it’s the least evil.
I also think it’s poetic that the only un-reviewable power the President has is the power to NOT do something to a citizen. It’s the exact opposite of Cheney’s torture plan, where the executive has unlimited power to persecute. The executive’s only unlimited power is to be merciful. That’s kind of beautiful.
And I think abuses like these are the price we pay for being able to suffer horrific, divisive fights and continue after “with malice towards none, with charity towards all…to bind up the nation’s wounds.”
Which isn’t to say that we should smile and shrug. We should be outraged and yell, just so we have as few of these as possible.
December 24th, 2008 at 11:41 am
anonymiss -
You make some good points, however it does not seem as if many pardon beneficiaries had directly defrauded or otherwise injured people, in a way that might create a lynch mob mentality. It’s not as if Bernie Madoff or the Enron people have gotten pardons.
December 24th, 2008 at 11:51 am
This can only change via an amendment.
So, here’s my suggestion: pardons for people who worked in the Executive branch, members of Congress, people who donated more than $200 to the President in question, his Presidential library, his party, or candidates from his party, and officials of the President’s party, cannot receive a pardon or commutation without a 2/3rds majority vote in both houses of Congress.
That covers all the dodgy pardons I can think of. Mark Rich, Scooter Libby…I can’t think of anyone of that ilk who wouldn’t be covered under it.
December 24th, 2008 at 11:54 am
Removing the power of presidential pardon, or placing significant restrictions on it, is a very bad idea. (The notion of requiring congressional approval is especially bad, essentially turning the pardon process into a political popularity contest.) Sometimes an executive pardon is the only way to ensure that some form of justice is actually done. (Here in Texas, for example, there is no judicial way to reverse a criminal conviction that has gone through all procedural appeals and is later disproved, e.g., through DNA evidence. The only option that remains in those cases is a gubernatorial “pardon on basis of innocence” [or something similar]). While there are certainly cases of seemingly inappropriate pardons, I would venture that there are at least as many that accomplish real justice in the larger sense, while the vast majority of them are really just a wash.
Yes, the power has unquestionably been abused. Yes, it is likely to be abused again int he next 30 days. But the fault there lies with the executive, not the authority that allows it. Anonymiss has it right: “Which isn’t to say that we should smile and shrug. We should be outraged and yell, just so we have as few of these as possible.”
December 24th, 2008 at 11:58 am
James Madison welcomes you and two-thirds of the states to try.
December 24th, 2008 at 11:58 am
To some extent even “sleazebag” or “crony” pardons are reasonable checks and balances against overzealous prosecutions (dare I say Marc Rich?) or that old cliche, “criminialization of policy differences.” At least it gives all sides some cards to play, in a balance-of-power spirit. The biggest abuse seems to be end-of-term pardons that can be absolutely indefensible, with no consequences (e.g. Bush 41’s spiteful Weinberger pardon, which may have started the trend).
I wonder if a solution would be to limit the pardon power post-election, for an outgoing president. Any pardons would have to be issued before, say, Nov. 1, and would end up being factored into voters’ electoral calculations, which might provide some sort of political check and balance without imparing the power itself. Would this take a constitutional amendment, or might there be a way to do it legislatively, by incorporating, say, a 90-day delay in the pardon process so that late “provisional” pardons were reviewable/reversible by a successor?
December 24th, 2008 at 12:05 pm
True. Ir really is.
December 24th, 2008 at 12:09 pm
What say Mr. Yglesias about the pardon issued to Charlie Winters? Surely we must hear from Mr. Trevor and Mr. otto about this!
December 24th, 2008 at 12:16 pm
Maybe in the Republicans’ minds this guy was just taking revenge on the poor minorities who f**ked up our economy.
December 24th, 2008 at 12:27 pm
How about the gov’t. auctioning a predetermined number of pardons to the highest bidders? It would formalize what the existing process approximates except that the money would go to the U.S. Treasury.
December 24th, 2008 at 1:33 pm
Matt: a request. Do you have any information on the history behind the President’s pardon power? Are there any historical documents that could point towards what the framers of the Constitution intended to accomplish by giving the President this power? Is it being used more frequently now than in the past, and is the current use of the pardon power warping the original intention? If that is the case, is there any good reason to not attempt a Constitutional amendment stripping the President of this power?
December 24th, 2008 at 1:36 pm
honestly, just about every one of Bush’s pardons (except one glaring one) has been extremely reasonable, far more so than Clinton or most other presidents. So while I don’t necessarily agree with this one, I’ll let it slide
December 24th, 2008 at 1:43 pm
My proposal: pardons after election day by a President leaving office have to be confirmed by the successor or they will not take effect. That way there’s always someone to take the political hit for an offensive pardon, and you maintain the pardon’s function as an instrument to do justice.
December 24th, 2008 at 2:20 pm
My candidates for a pardon are border agents Ramos and Compean who are doing 11 years (in solitary) for firing on a fleeing suspect whom they had reasonable cause to believe represented a mortal danger to them — to wit:
The excuse for trying these border agents under the civil rights act was the Supreme Court decision taking away the discretion to shot a fleeing suspect if the officer is not certain the suspect had a gun — which the border agents were honest enough to admit.
But this ruling was in answer to the wide spread practice of the era to give the police officer complete discretion to shot any fleeing suspect. Up until 1968 it was the RULE in (liberal) New York State to shot to kill EVERY fleeing suspect after firing a warning shot (saw this practice enacted recently in a 1961 episode of the Naked City TV series).
But a MEXICAN (maybe not an Irishman — no kidding here) who abandons a van and violently assaults an officer to escape is 99.9% certain to be in fear of doing 20 years for major drug trafficking and just as certain to be carrying a gun (otherwise Mexicans, even coyotes, NEVER assault border agents — for those from parts of the country who are not familiar).
The totality of circumstances in the border guards case is not that of a 16 year old burglary suspect climbing over a fence with his back turned as in the high court precedent. There was no question of the mortal danger for the officers here — meaning the discretion to shot could not sensibly be denied — meaning there was no grounds for the civil rights case.
Precedents have to evolve in accordance with circumstances. Sufficient mortal danger to the officers = discretion to use deadly force cannot be categorically denied = no excuse to bring a civil rights charge.
*************************
Until 1968 the rule in (liberal) New York State was to fire a warning shot over the head of EVERY fleeing suspect and then, if he did not stop, shot to kill. I recently watched a fictional reenactment of this typical for the era policy on a 1961 Naked City TV rerun.
This easy shooting policy was the target of the US Supreme Court precedent (Tennessee v. Garner, 471 US 1, 1985) that protected fleeing suspects from indiscriminate shooting.
Believe it or not (I can hardly believe it myself but I was there and it was a big story) in 1968 New York State changed its deadly force rule to:
A police officer may not draw his gun even upon entering the scene of a reported armed robbery, even if the suspect has drawn his gun — unless — the suspect points his gun at the officer. Which new rule quickly got a police officer killed in Queens, New York; leading a quick legislative reversal.
If — when? — a border patrol agent gets killed because he or she was afraid to use deadly force because of what happened to Ramos and Compean then maybe their conviction will be reversed or pardoned. You should try to report as many close calls as possible to get them released first.
December 24th, 2008 at 2:21 pm
This feels exactly like the debates on the electoral college. Whenever someone criticizes anything that’s in the Constitution–anything–people will always come in to explain the genius of that thing, how it serves as an essential check. They never have any positive examples (genuinely curious: what’s a recent case of a presidential pardon being used in a clearly just way?), and there are always clear examples of why it’s bad–Bush 2000 for the EC, the jerk described in this post for the pardon–but they ignore those in favor of the abstract principles the Founders envisioned, which mean that that part of the Constitution must be preserved.
So the defenders’ message is always, “If you don’t like it, lump it,” even if they say otherwise. For instance, anonymiss says that we’re not powerless, no:
“We should be outraged and yell, just so we have as few of these as possible.”
Except that the outrageous pardons are always done at the nadir of an administration’s accountability, so “outrage” is about as efficacious as prayer for changing things. People were outraged with Clinton’s midnight pardons too, and what happened?
By the way, I like Marty Busse’s idea: no pardons of any member of that President’s Executive Branch or any large donors to his/her party. If their cause is so just, let the next party’s President pardon them.
December 24th, 2008 at 2:28 pm
charles pierce (THE charles pierce?):
Well, James Madison and three-quarters of the states to ratify, anyway.
Two-thirds of both houses of Congress to propose (the two-thirds of state legislatures to propose has never been done).
But I’d rather they didn’t. I’m with those who say leave it as it is, and I particularly agree with anonymiss that it’s actually beautiful that the only unlimited power the Constitution (as opposed to Yoo/Cheney/Addison) allows the executive is the power of granting mercy.
December 24th, 2008 at 2:36 pm
MattY is being too hard on Bush, when for some things they’re on the same side. For instance, another pardon – and another lack of pardon – should set “liberal” hearts a-flutter.
December 24th, 2008 at 2:41 pm
what’s a recent case of a presidential pardon being used in a clearly just way?
It wasn’t quite a pardon, but Carter granting amnesty to the draft dodgers who fled to Canada seems like a good example. And there have certainly been examples of governors, e.g., using the pardon power to prevent people with colorable showings of innocence from going to the chair.
December 24th, 2008 at 2:47 pm
Dilan, I’m not against all executive pardons, but there need to be limits like there are on everything else. Buying your kid a pardon with donations to the Republican Party is corruption, pure and simple, and the same would be true under any party.
Or we could just stick with pure, beautiful symbolism to run our country:
“…it’s actually beautiful that the only unlimited power the Constitution (as opposed to Yoo/Cheney/Addison) allows the executive is the power of granting mercy.”
Great! How much more beautiful would it be if there were safeguards against using that power in crass, cynical, corrupt ways?
December 24th, 2008 at 4:03 pm
I’d like to see a president pardon everyone who is in prison or on probation for marijuana possession, and every soldier who is AWOL from an illegal war.
It’s not going to happen, but I think pardoning people for government excess makes more sense than pardoning people who screw people over for a buck.
December 24th, 2008 at 7:10 pm
Apparently Bush turned around and put a hold on this pardon before it could be finalized.
December 24th, 2008 at 8:25 pm
Charlie Winters, SLC? Who’s that a sop to – you? Or a way to divert attention from the Bernie Madoff super so what else is new shandah? The motherf’s dead – a lot of good it’ll do him. If Obama wants to make up for WJC’s Marc Rich abomination – he should pardon Leonard Pelletier pronto. Anyone with a clear eye about Clinton knew he wouldn’t, but what’s Obama’s excuse?
December 24th, 2008 at 9:52 pm
Agree with Trevor. The entire planet knows Leonard Peltier is a political prisoner, courtesy of the FBI’s revenge squad. He should be pardoned.
But he won’t be – because once the full story of Peltier came out, as it might do if he were released, the FBI would go down. And there’s no statist who will allow that – including Obama.
Denis Drew: “The excuse for trying these border agents under the civil rights act was the Supreme Court decision taking away the discretion to shot a fleeing suspect if the officer is not certain the suspect had a gun — which the border agents were honest enough to admit.”
So in other words, you want cops to kill people even though there is no evidence they are indeed a “mortal threat” – since by your own statement, the suspect was fleeing and there was no evidence he had a gun – which presumably, if he HAD a gun, he would have used in the process of “assaulting the officer” in order to flee.
Q.E.D. You’re a fascist.
And by the way – fuck cops. The only good cop is a dead cop – and that goes double for Border Patrol thugs.
December 25th, 2008 at 6:48 am
Re Richard Steven Hack
And by the way – fuck cops. The only good cop is a dead cop – and that goes double for Border Patrol thugs.
Once again, the blogs resident ex-con armed bank robber advocates the assassination of police officers. Of course, with Mr. Hack, its all blather. When he had the opportunity to blow away some cops who arrested him as he was trying to board a bus during his ill fated escape attempt from his latest bank robbery, he supinely surrendered without a whimper.
‰e Trevor
But Mr. Trevor should be applauding Mr. Madoff. Most of his victims were his fellow co-religionists and Israeli institutions like the Technion. After all, isn’t anything that hurts Israel good in the eyes of Mr. Trevor? Incidentally, it should be pointed out that Mr. Winters was not Jewish so that should make him a double villain in the eyes of Mr. Trevor.
December 25th, 2008 at 12:27 pm
Jon H mentioned this above at #27, but it’s definitely worth pointing out that Bush rescinded this pardon.
How does that even work.
December 25th, 2008 at 2:52 pm
I think the Presidential pardon power should be removed altogether. Pardons belong in the purview of the Judicial branch, and should stay there. It’s the only way to insulate the process from political considerations.
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