Dr. Baron wrote:Unfortunately, the pardon power gets a bad rap due to the inevitable controversial pardons that invariably come at the end of every term. A smart President could and should use the pardon power to correct injustices, take on structural issues in criminal justice, and fix problems that are beyond the power or inclination of the court system.
I'm sure that's true and it's not going anywhere as it'd need a change to the constitution to stop it; but isn't it a bit of a recipe for corruption? A corrupt individual like Trump can encourage illegal behaviour from subordinates with the promise of a pardon if they get caught. A bit like a 10th century bishop promising to shrive a criminal if he gets rid of an enemy for him.
I'm somewhat surprised that it hasn't been used like this a lot more.
Apparently it's been traditional for pardons to go through a bureaucratic process before being signed off, but wouldn't it be better to make this mandatory? Maybe have independent bodies who are allowed to submit suggestions? I don't know, but the current system seems a bit medieval.
The trouble is that, though the US Constitution/American concept of separation of powers is designed to limit the powers of different branches and actors, it also presumes good faith actors, and up until now, that's more or less been the case.
Presumably, a corrupt quid pro quo "deal" for a pardon would be subject to prosecution or impeachment. Failing that, the remedy is at the ballot box. But another view of it is that Donald Trump was elected President, and when the people elected him President, they did so knowing they were electing a venal, transactional guy would would enjoy exercising the pardon power in this manner . . . the people got what they chose.
The bureaucratic process has historically been necessary because traditionally, the President has been fully engaged with his duties and when that's the case, there's no time for the President himself to vet every decision he makes. Everything
goes through a bureaucratic process! President Trump simply isn't engaged in his duties as President, doesn't trust the public servants who do the work on policy so his decisions are based on thorough vetting, and is too lazy and (probably) stupid to even bother thinking about the executive summaries he would get. And, because this is one of the few decisions he can make unencumbered by other considerations, it's something he relishes. Any requirement for additional process to mediate the President's decision process that came from Congress (or any other external force) would require a constitutional amendment since the whole point of the pardon power is that it belongs to the executive and is, in some regards, a check on the judiciary and the Congress. In that respect, it is a remnant of medieval days when the leader would have plenary power to make decisions, unencumbered by law or competing claims of others with co-equal powers. The problem in the past was that the process was driven by people from the same agencies that initially prosecuted the people seeking pardons.