Abuse of the Pardon Prevention Act - 2018

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Addie
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Abuse of the Pardon Prevention Act - 2018

#1

Post by Addie » Wed Apr 18, 2018 12:47 pm

Schiff.house.gov - press release
Rep. Schiff Introduces Legislation to Prevent Abuse of Presidential Pardons

Washington, DC – Today, Rep. Adam Schiff (D-CA) introduced the Abuse of the Pardon Prevention Act, legislation to prevent this President or any other from abusing the pardon power for their own personal benefit or to obstruct justice. The legislation would require that if the President pardons someone in connection with an investigation in which the President or one of his family members is a target, subject, or witness, the evidence against recipient of the pardon would be provided by the Department of Justice to Congress.

“President Trump already has signaled that he is willing to use his constitutional powers in order to protect those who remain loyal to him, even if they are convicted of obstruction or perjury,” said Rep. Schiff. “By pardoning Scooter Libby last week, Trump has sent a clear and unmistakable message to potential witnesses against him or members of his family that: ‘if you have my back, I’ll have yours.’

At a time of constitutional peril, it is incumbent on the Congress to stand up for the rule of law by creating a strong disincentive to the President issuing pardons to protect himself and obstruct ongoing investigations.”

Background:

There are unsettling indications that President Trump could use the expansive pardon power granted by the Constitution as an instrument to undermine the Special Counsel’s investigation and other investigations into his business, family or his associates. In March, the New York Times reported that the President’s attorney, John Dowd, had floated the possibility of a presidential pardon to attorneys for Michael Flynn and Paul Manafort last year. Already, President pardoned Scooter Libby, a Bush Administration official who was convicted in 2007 of obstruction of justice and lying to the FBI. Trump has also pardoned Sheriff Joe Arpaio, a political ally convicted of contempt for discriminatory police practices.

Article II, Section 2 of the U.S. Constitution provides that presidents "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This legislation, if signed into law, would create a powerful disincentive for any president who seeks to use the pardon power as an instrument of obstruction in an ongoing investigation. It would grant Congress the power to conduct rigorous oversight, in a way that does not unduly burden the president’s inherent constitutional powers.

The Abuse of the Pardon Prevention Act complements other proposals to prevent President Trump from interfering with the work of the Special Counsel, including the Special Counsel Independence and Integrity Act. The text of the bill is below:

SEC 1. Short title.

This Act may be cited as the “Abuse of the Pardon Prevention Act”.

SEC. 2. Congressional oversight relating to certain pardons.

(a) Submission of information.—In the event that the President grants an individual a pardon for an offense against the United States that arises from an investigation in which the President, or a relative of the President, is a target, subject, or witness, not later than 30 days after the date of such pardon, the Attorney General shall submit to the chairmen and ranking members of the appropriate congressional committees all materials of an investigation that were obtained by a United States Attorney, another Federal prosecutor, or an investigative authority of the Federal Government, relating to the offense for which the individual is so pardoned.

(b) Treatment of information.—Rule 6(e) of the Federal Rules of Criminal Procedure may not be construed to prohibit the disclosure of information required by subsection (a) of this section.

(c) Applicability.—Subsection (a) shall apply with respect to a pardon granted by the President on or after January 20, 2017.

(d) Definitions.—In this section:

(1) The term “appropriate congressional committees” means—

(A) the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate; and

(B) if an investigation relates to intelligence or counterintelligence matters, the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.

(2) The term “pardon” includes a commutation of sentence.

(3) The term “relative” has the meaning given that term in section 3110(a) of title 5, United States Code.


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Re: Abuse of the Pardon Prevention Act - 2018

#2

Post by Jim » Wed Apr 18, 2018 1:09 pm

Wouldn't that be considered a change in the Constitution and need an amendment?
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
It seems to me that this is an attempt to limit the Presidential powers in the Constitution.



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Re: Abuse of the Pardon Prevention Act - 2018

#3

Post by much ado » Wed Apr 18, 2018 1:30 pm

Jim wrote:
Wed Apr 18, 2018 1:09 pm
Wouldn't that be considered a change in the Constitution and need an amendment?
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
It seems to me that this is an attempt to limit the Presidential powers in the Constitution.
I don't see it that way. The act has no affect on his powers. He can use the pardon as he chooses. It just means that some information that DOJ might possess, which is restricted from release by Federal statute, is no longer restricted from release in certain specific instances.



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Re: Abuse of the Pardon Prevention Act - 2018

#4

Post by Sterngard Friegen » Wed Apr 18, 2018 1:48 pm

I didn't see SEC. 3, asking for a pony.



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Re: Abuse of the Pardon Prevention Act - 2018

#5

Post by Jim » Wed Apr 18, 2018 2:44 pm

much ado wrote:
Wed Apr 18, 2018 1:30 pm
I don't see it that way. The act has no affect on his powers. He can use the pardon as he chooses. It just means that some information that DOJ might possess, which is restricted from release by Federal statute, is no longer restricted from release in certain specific instances.
So if Trump decides to pardon someone out of the blue, there's nothing for Congress to review and the pardon goes through. I can see this could become ripe for abuse.



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Re: Abuse of the Pardon Prevention Act - 2018

#6

Post by Maybenaut » Wed Apr 18, 2018 2:49 pm

Jim wrote:
Wed Apr 18, 2018 2:44 pm
much ado wrote:
Wed Apr 18, 2018 1:30 pm
I don't see it that way. The act has no affect on his powers. He can use the pardon as he chooses. It just means that some information that DOJ might possess, which is restricted from release by Federal statute, is no longer restricted from release in certain specific instances.
So if Trump decides to pardon someone out of the blue, there's nothing for Congress to review and the pardon goes through. I can see this could become ripe for abuse.
It’s no less ripe for abuse today than it was when the Constitution was ratified.



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Re: Abuse of the Pardon Prevention Act - 2018

#7

Post by bob » Wed Apr 18, 2018 2:51 pm

Maybenaut wrote:
Wed Apr 18, 2018 2:49 pm
It’s no less ripe for abuse today than it was when the Constitution was ratified.
Concur. In theory, such a law could create an incentive for early/pre-emptive pardons, but it is unlikely that any president would pardon someone who wasn't already on the feds' radar.

And like :sterngard: suggested: this is just pie-in-the-sky election-year posturing.


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Re: Abuse of the Pardon Prevention Act - 2018

#8

Post by much ado » Wed Apr 18, 2018 2:57 pm

Maybenaut wrote:
Wed Apr 18, 2018 2:49 pm
Jim wrote:
Wed Apr 18, 2018 2:44 pm
much ado wrote:
Wed Apr 18, 2018 1:30 pm
I don't see it that way. The act has no affect on his powers. He can use the pardon as he chooses. It just means that some information that DOJ might possess, which is restricted from release by Federal statute, is no longer restricted from release in certain specific instances.
So if Trump decides to pardon someone out of the blue, there's nothing for Congress to review and the pardon goes through. I can see this could become ripe for abuse.
It’s no less ripe for abuse today than it was when the Constitution was ratified.
True, And he cannot pardon someone for a crime that has not yet been committed.



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Re: Abuse of the Pardon Prevention Act - 2018

#9

Post by Maybenaut » Wed Apr 18, 2018 3:06 pm

much ado wrote:
Wed Apr 18, 2018 2:57 pm
Maybenaut wrote:
Wed Apr 18, 2018 2:49 pm
Jim wrote:
Wed Apr 18, 2018 2:44 pm


So if Trump decides to pardon someone out of the blue, there's nothing for Congress to review and the pardon goes through. I can see this could become ripe for abuse.
It’s no less ripe for abuse today than it was when the Constitution was ratified.
True, And he cannot pardon someone for a crime that has not yet been committed.
Not for a crime that hadn’t been committed, but he can issue a pardon for a crime that hasn’t been charged (or discovered).



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Re: Abuse of the Pardon Prevention Act - 2018

#10

Post by Jim » Wed Apr 18, 2018 3:33 pm

bob wrote:
Wed Apr 18, 2018 2:51 pm
And like :sterngard: suggested: this is just pie-in-the-sky election-year posturing.
Didn't some pub congressman try something similar during the Obama and/or Clinton administration?



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Re: Abuse of the Pardon Prevention Act - 2018

#11

Post by noblepa » Wed Apr 18, 2018 5:13 pm

much ado wrote:
Wed Apr 18, 2018 2:57 pm
Maybenaut wrote:
Wed Apr 18, 2018 2:49 pm
Jim wrote:
Wed Apr 18, 2018 2:44 pm


So if Trump decides to pardon someone out of the blue, there's nothing for Congress to review and the pardon goes through. I can see this could become ripe for abuse.
It’s no less ripe for abuse today than it was when the Constitution was ratified.
True, And he cannot pardon someone for a crime that has not yet been committed.
Gerald Ford pardoned Richard Nixon for any crimes that he may or may not have committed. RMN had not been adjudicated to have committed a crime.

I see a pretty high separation of powers hurdle for such a law to overcome. It seems to me that the entire reason for such a law is to attempt to intimidate Trump into foregoing his inclination to pardon his associates who might be witnesses against him. That is clearly an abuse of the pardon, but the wording of the Constitution is pretty clear that a President has unfettered authority to grant pardons. Any kind of congressional review could be seen as an attempt to control the pardon power, through intimidation.

Abusing the pardon power could certainly be used as grounds for impeachment.



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Re: Abuse of the Pardon Prevention Act - 2018

#12

Post by much ado » Wed Apr 18, 2018 5:30 pm

noblepa wrote:
Wed Apr 18, 2018 5:13 pm
much ado wrote:
Wed Apr 18, 2018 2:57 pm
Maybenaut wrote:
Wed Apr 18, 2018 2:49 pm

It’s no less ripe for abuse today than it was when the Constitution was ratified.
True, And he cannot pardon someone for a crime that has not yet been committed.
Gerald Ford pardoned Richard Nixon for any crimes that he may or may not have committed. RMN had not been adjudicated to have committed a crime.

:snippity:
Ford did not pardon Nixon for crimes in the future. Ford was quite specific about the time frame. It was for any crime that Nixon may have committed while in office:
Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.



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Re: Abuse of the Pardon Prevention Act - 2018

#13

Post by Maybenaut » Wed Apr 18, 2018 5:37 pm

noblepa wrote:
Wed Apr 18, 2018 5:13 pm

I see a pretty high separation of powers hurdle for such a law to overcome. It seems to me that the entire reason for such a law is to attempt to intimidate Trump into foregoing his inclination to pardon his associates who might be witnesses against him. That is clearly an abuse of the pardon, but the wording of the Constitution is pretty clear that a President has unfettered authority to grant pardons. Any kind of congressional review could be seen as an attempt to control the pardon power, through intimidation.

Abusing the pardon power could certainly be used as grounds for impeachment.
Can it? Is the exercise of an unfettered constitutionally guaranteed power a high crime or misdemeanor?



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Re: Abuse of the Pardon Prevention Act - 2018

#14

Post by much ado » Wed Apr 18, 2018 5:43 pm

Maybenaut wrote:
Wed Apr 18, 2018 5:37 pm
noblepa wrote:
Wed Apr 18, 2018 5:13 pm

I see a pretty high separation of powers hurdle for such a law to overcome. It seems to me that the entire reason for such a law is to attempt to intimidate Trump into foregoing his inclination to pardon his associates who might be witnesses against him. That is clearly an abuse of the pardon, but the wording of the Constitution is pretty clear that a President has unfettered authority to grant pardons. Any kind of congressional review could be seen as an attempt to control the pardon power, through intimidation.

Abusing the pardon power could certainly be used as grounds for impeachment.
Can it? Is the exercise of an unfettered constitutionally guaranteed power a high crime or misdemeanor?
I think an impeachable offense is anything that Congress says it is. There is no higher authority.



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Re: Abuse of the Pardon Prevention Act - 2018

#15

Post by Maybenaut » Wed Apr 18, 2018 5:46 pm

much ado wrote:
Wed Apr 18, 2018 5:43 pm
Maybenaut wrote:
Wed Apr 18, 2018 5:37 pm
noblepa wrote:
Wed Apr 18, 2018 5:13 pm

I see a pretty high separation of powers hurdle for such a law to overcome. It seems to me that the entire reason for such a law is to attempt to intimidate Trump into foregoing his inclination to pardon his associates who might be witnesses against him. That is clearly an abuse of the pardon, but the wording of the Constitution is pretty clear that a President has unfettered authority to grant pardons. Any kind of congressional review could be seen as an attempt to control the pardon power, through intimidation.

Abusing the pardon power could certainly be used as grounds for impeachment.
Can it? Is the exercise of an unfettered constitutionally guaranteed power a high crime or misdemeanor?
I think an impeachable offense is anything that Congress says it is. There is no higher authority.
Yeah, I get that. I just wouldn't go so far as to be "certain" that Congress would find a presidential pardon -- even a really, really crappy one -- to be a high crime or misdemeanor, as noblepa seems to suggest.



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Re: Abuse of the Pardon Prevention Act - 2018

#16

Post by bob » Wed Apr 18, 2018 5:53 pm

Maybenaut wrote:
Wed Apr 18, 2018 5:46 pm
I just wouldn't go so far as to be "certain" that Congress would find a presidential pardon -- even a really, really crappy one -- to be a high crime or misdemeanor, as noblepa seems to suggest.
This article quotes James Madison:
There is one security in this case [a misuse of the pardon power by the president] to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President.


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Re: Abuse of the Pardon Prevention Act - 2018

#17

Post by neeneko » Wed Apr 18, 2018 5:58 pm

I wonder.. if the exception is 'cases of impeachment', I wonder if prosecutors could argue that if an impeachment is in progress the pardoning power becomes restricted in terms of use on people connected to the impeachment?



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Re: Abuse of the Pardon Prevention Act - 2018

#18

Post by Maybenaut » Wed Apr 18, 2018 7:02 pm

bob wrote:
Wed Apr 18, 2018 5:53 pm
Maybenaut wrote:
Wed Apr 18, 2018 5:46 pm
I just wouldn't go so far as to be "certain" that Congress would find a presidential pardon -- even a really, really crappy one -- to be a high crime or misdemeanor, as noblepa seems to suggest.
This article quotes James Madison:
There is one security in this case [a misuse of the pardon power by the president] to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President.
Thanks, bob. I like learning things. :thumbs: ETA: MY apologies, noblepa



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Re: Abuse of the Pardon Prevention Act - 2018

#19

Post by Fortinbras » Thu Apr 19, 2018 9:20 am

Back in 1790, in the Virginia state convention to ratify the proposed US Constitution, there was a prolonged discussion of "What if the President entered into a criminal conspiracy of some sort, and then used his Executive power to pardon his co-conspirators?" And several distinguished members, including Madison, responded that if the the Prez was caught pardoning people for crimes he was involved with, it would immediately result in his impeachment.

The pardoning power is a perquisite or privilege exclusive to the President. I do not think a Congressional effort to encumber it would be Constitutional or desirable. But the fact that impeachment would be the punishment for abusing the pardoning power is sufficient regulation.



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Re: Abuse of the Pardon Prevention Act - 2018

#20

Post by neeneko » Thu Apr 19, 2018 10:02 am

Fortinbras wrote:
Thu Apr 19, 2018 9:20 am
The pardoning power is a perquisite or privilege exclusive to the President. I do not think a Congressional effort to encumber it would be Constitutional or desirable. But the fact that impeachment would be the punishment for abusing the pardoning power is sufficient regulation.
See, I would argue that impeachment is not sufficient regulation for pretty much anything. It is about as subjective of a law as you can have, and should really be reserved for unforeseen situations, not a safety net for things that you just sorta have to hope will be be considered illegal if the power in charge happens to feel like it at the time.

I am actually kinda hoping Trump does abuse the hell out of it in the hopes that there might be enough will for an amendment to finally remove it.



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Re: Abuse of the Pardon Prevention Act - 2018

#21

Post by RoadScholar » Thu Apr 19, 2018 10:10 am

So a criminal president can pardon his partners in crime, while his shameless lackeys in Congress protect them by blocking impeachment (or at any rate, removal)? And meanwhile his lap-dog 'news' media are telling everyone "nothing to see here?"

The Founders never imagined anything like Trumpism.


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Re: Abuse of the Pardon Prevention Act - 2018

#22

Post by Sterngard Friegen » Thu Apr 19, 2018 10:57 am

RoadScholar wrote:
Thu Apr 19, 2018 10:10 am
So a criminal president can pardon his partners in crime, while his shameless lackeys in Congress protect them by blocking impeachment (or at any rate, removal)? And meanwhile his lap-dog 'news' media are telling everyone "nothing to see here?"

The Founders never imagined anything like Trumpism.
I disagree. I think exactly the opposite was true.

The Founders had gone through a decade and a half of the reign of George III. They knew precisely that their new leaders could be abusive or ignorant or even so self absorbed as to be traitorous. And they created the impeachment process to get rid of them. The "problem" was that none of their leaders was that bad and impeachment became a rare process. The Founders did not expect that.



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Re: Abuse of the Pardon Prevention Act - 2018

#23

Post by fierceredpanda » Thu Apr 19, 2018 11:05 am

RoadScholar wrote:
Thu Apr 19, 2018 10:10 am
So a criminal president can pardon his partners in crime, while his shameless lackeys in Congress protect them by blocking impeachment (or at any rate, removal)? And meanwhile his lap-dog 'news' media are telling everyone "nothing to see here?"

The Founders never imagined anything like Trumpism.
Correct. Neither did they imagine an Air Force. Does that mean that the President is not Commander-in-Chief of the Air Force, since the Constitution only provides for an Army and a Navy? Plainly not. This is why strict construction or "textualism" (to use the fashionable term) doesn't float my boat. The document was written for its time, but - failing amendments to address such things - we have to read it for modern times.

Of course it was inconceivable in 1789 to think that Congress would almost entirely abandon its Article I responsibilities in favor of becoming a Congress of Pundits - one half cheering for the Executive, the other booing. But that's where we are. Not much to be done about it unless you can summon the popular will to amend the Constitution. There's also the possibility of a convention, but that's a project about which, I confess, I am not enthusiastic. If you think moneyed interests are too powerful already, how would a constitutional convention go with the Kochs and the Mercers spending unlimited money on ads and lobbying to customize the founding document of this Republic to their hearts' desires. That's the nightmare.


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Re: Abuse of the Pardon Prevention Act - 2018

#24

Post by Sam the Centipede » Thu Apr 19, 2018 11:11 am

How I see it in my non-scholarly way:

The proper "check and balance" on the President is the election process. It is up to The People to elect a decent President and then they have the duty of removing him four years later if their choice proves unsatisfactory or a better candidate emerges. Impeachment is there as a backstop for a President who goes rogue or misbehaves in ways unknown at his election and which can't wait for the next election.

There shouldn't be great powers to remove a sitting President; that is an abuse of the electoral mandate. The electorate made their choice (pace the problem with popular votes versus electoral college votes), it must be respected.

And has Trump done anything other than be Trump? Not really. He promised to be a moronic asshat, he's been a moronic asshat.

I don't see that impeachment would help the democratic or Democratic cause. If the Justice folk can give Trump a hard time, great. If Trump can be persuaded to resign, great. But impeachment would be polarizing and ineffective, and gives the Republicans a head start in working out how they will deal with the aftermath, whereas if Trump goes suddenly, they'll be in a mess.



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Re: Abuse of the Pardon Prevention Act - 2018

#25

Post by fierceredpanda » Thu Apr 19, 2018 11:30 am

Sam the Centipede wrote:
Thu Apr 19, 2018 11:11 am
How I see it in my non-scholarly way:

The proper "check and balance" on the President is the election process. It is up to The People to elect a decent President and then they have the duty of removing him four years later if their choice proves unsatisfactory or a better candidate emerges. Impeachment is there as a backstop for a President who goes rogue or misbehaves in ways unknown at his election and which can't wait for the next election.

There shouldn't be great powers to remove a sitting President; that is an abuse of the electoral mandate. The electorate made their choice (pace the problem with popular votes versus electoral college votes), it must be respected.

And has Trump done anything other than be Trump? Not really. He promised to be a moronic asshat, he's been a moronic asshat.

I don't see that impeachment would help the democratic or Democratic cause. If the Justice folk can give Trump a hard time, great. If Trump can be persuaded to resign, great. But impeachment would be polarizing and ineffective, and gives the Republicans a head start in working out how they will deal with the aftermath, whereas if Trump goes suddenly, they'll be in a mess.
All true. I suppose the primary objection is that the moronic asshat also controls an unfathomable number of nuclear weapons.


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