One of the things I had hoped for from the Trump DOJ was challenging the whole notion of a preemptive pardon. The precedent set by Gerald Ford and exploited by Biden has never been tested in court. Pam Bondi Should indict (assuming there are actual grounds) of someone preemptively pardoned by Biden. They would of course appeal to their preemptive pardon to have charges dismissed but it would be interesting to see if the Courts would not find them by definition not within the pardon powers of the President. In fact such pardons do damage to the entire meaning of the pardon power and opens the door to great mischief. No one acting on a Presidents power could ever be held to account again because he just waves a magic wand before he leaves office and trials and convictions (which are the subject of pardons) would just go away altogether. It as absurd as the notion of pardoning oneself. Amnesty is very different from clemency and pardon.
Of course this is a card that Trump would never want to give up from his bag of tricks.
Put though a constitutional amendment removing the presidential pardon power and retroactively revoking all presidential pardons. Not likely, but it would do it. It has other problems, but they are less serious than the problems associated with misuse of the pardon power.
1. Require that to be pled, a pardon must a) have been published in the Federal Register when it was granted; b) specify in detail the individual, the conduct, and the criminal law that are being pardoned; c) have been formally accepted by the individual within a short time after the pardon is published.
2. Each pardon may extend to only one individual for a single course of conduct.
3. Acceptance by the individual pardoned constitutes an admission of all of the factual and legal statements in the pardon.
4. A person accepting a pardon is liable to compensate every person harmed by the person's conduct as described in the pardon.
I think the constitutional amendment track is worth pursuing to reform the pardon power (obviously not easy!) I would establish a clemency review board of 5 randomly-selected circuit judges who would serve for six-year terms. A presidential pardon would not go into effect if the board vetoed it within 90 days. The congressional veto and list of prohibited pardons won't work, in my view. I published an opinion in Bloomberg Law on this subject here --> https://news.bloomberglaw.com/legal-exchange-insights-and-commentary/trumps-abuses-should-motivate-congress-to-rein-in-pardon-power
One of the things I had hoped for from the Trump DOJ was challenging the whole notion of a preemptive pardon. The precedent set by Gerald Ford and exploited by Biden has never been tested in court. Pam Bondi Should indict (assuming there are actual grounds) of someone preemptively pardoned by Biden. They would of course appeal to their preemptive pardon to have charges dismissed but it would be interesting to see if the Courts would not find them by definition not within the pardon powers of the President. In fact such pardons do damage to the entire meaning of the pardon power and opens the door to great mischief. No one acting on a Presidents power could ever be held to account again because he just waves a magic wand before he leaves office and trials and convictions (which are the subject of pardons) would just go away altogether. It as absurd as the notion of pardoning oneself. Amnesty is very different from clemency and pardon.
Of course this is a card that Trump would never want to give up from his bag of tricks.
Would be nice to have a limit of 100 pardons per calendar year, too. Or 10. Whatever.
Put though a constitutional amendment removing the presidential pardon power and retroactively revoking all presidential pardons. Not likely, but it would do it. It has other problems, but they are less serious than the problems associated with misuse of the pardon power.
Congress could:
1. Require that to be pled, a pardon must a) have been published in the Federal Register when it was granted; b) specify in detail the individual, the conduct, and the criminal law that are being pardoned; c) have been formally accepted by the individual within a short time after the pardon is published.
2. Each pardon may extend to only one individual for a single course of conduct.
3. Acceptance by the individual pardoned constitutes an admission of all of the factual and legal statements in the pardon.
4. A person accepting a pardon is liable to compensate every person harmed by the person's conduct as described in the pardon.
I think the constitutional amendment track is worth pursuing to reform the pardon power (obviously not easy!) I would establish a clemency review board of 5 randomly-selected circuit judges who would serve for six-year terms. A presidential pardon would not go into effect if the board vetoed it within 90 days. The congressional veto and list of prohibited pardons won't work, in my view. I published an opinion in Bloomberg Law on this subject here --> https://news.bloomberglaw.com/legal-exchange-insights-and-commentary/trumps-abuses-should-motivate-congress-to-rein-in-pardon-power