Democrats Eye Curbing the Pardon Power

Just in time for a midterm election that could scramble control of Congress, the Democrats are seeking reform of the federal pardon system. “If granted the majority,” Senator Adam Schiff contends, “Democrats will explore legislative fixes” on this head. These include ideas like, say, curbing “presidential pardons of prosecutors who carry out corrupt prosecutions,” and other reforms, the New Republic reports, that Mr. Schiff moots as “codifying guardrails.”There’s a problem, though, with the Coast Democrat’s suggestion, inchoate though it may be: The pardon law is the Constitution, and vice versa. The only way it can be narrowed is through a constitutional amendment. Feature the Constitution’s blunt language. It declares that the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”No restrictions. It amounts to “one of the most unfettered powers granted in the Constitution,” these columns have noted — and one that the Framers expected “to be exercised solely by the president, without embarrassment or hesitation, and with an abundance of the spirit of mercy.” Hamilton, for one, reckoned in 74 Federalist that a president’s “benign prerogative of pardoning should be as little as possible fettered or embarrassed.” One reason why the Framers gave presidents, and only the presidents, such unfettered authority to pardon, Hamilton added, is that “the criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Mr. Schiff, known for his Javert-like legal pursuit of President Trump, appears to have missed the memo.The junior senator of the California republic appears to see a reform of the pardon system as an element in a broader purge of the Justice Department that he asserts is “in shambles.” Mr. Schiff avers that “there is an unethical culture at the top that’s going to have to change.” To that end he envisions “barring the department from bringing charges solely on the order of a president that the department would not have brought otherwise.” Another brainstorm from Mr. Schiff, per the New Republic, is to legislate new curbs on what he deems prosecutions that are “selective” or “vindictive.” What of the Constitution’s demarcation of authority among the branches? Mr. Schiff, the magazine reports, “allowed that there may be separation-of-powers problems with limiting a president’s ability to direct prosecutions,” but adds: “I do think there’s a way of legislating this that would be constitutional.” Mr. Schiff’s musings are no doubt prompted in part by concerns over the lawfare-type prosecutions launched by Mr. Trump against such foes as the former FBI director, James Comey. Though more evidence could yet emerge, the charges so far against Mr. Comey suggest the kind of targeted legal campaign that FDR’s attorney general, Robert Jackson, warned against in his famous speech to federal prosecutors. A jury could prove Mr. Comey’s best defense.“We’re going to explore whether there’s a way to prohibit this,” says Mr. Schiff, who himself faces scrutiny by Mr. Trump’s DOJ. Yet the Founders considered sharing the presidential pardon power with Congress only to reject the idea. Before the Democrats go too far in rewriting the clemency laws, the point to recall is that the best “guardrails” are the protections of due process, civil liberties, and the pardon power enshrined in the Constitution itself.

Democrats Eye Curbing the Pardon Power

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