PRESIDENT DONALD J. TRUMP AND THE POTENTIAL ABUSE OF THE PARDON POWER.
President Donald Trump's pardon of Sheriff Joseph Arpaio of Maricopa County, Arizona on August 25, 2017, as well as his pardon of I. Lewis "Scooter" Libby Jr. on April 13, 2018, raises concerns about President Trump's potential abuse of the pardon power during the remainder of his term. (1) In fact, there are indications he is considering the use of the pardon power to protect his aides, family, and perhaps even himself, creating an environment where the public must be concerned about the possibility of a president using the constitutional pardon power to cover up his improper behavior. (2) The claims that President Trump and members of his presidential campaign allegedly colluded with the Russian government to influence the 2016 presidential election create the real possibility that Trump might use the pardon power to subvert any investigation. (3) Although most media attention in the aftermath of the election focused on discovering a connection between Trump's campaign and Russian intelligence agencies, (4) the events underlying the investigation by Special Counsel Robert Mueller III and various congressional committees also raise important issues about the exercise of presidential power under the United States Constitution. (5)
The presidential pardon power is a significant grant of authority that could be used in a self-interested manner by an executive to shield criminal or unethical activities from public scrutiny. (6) In fact, the Framers of the Constitution voiced concerns about the potential use of the pardon power to conceal criminal activities related to the President. (7) The participants in the Philadelphia Constitutional Convention of 1787 incorporated the pardon power in the Constitution based upon the assumption that a president would not violate the law. (8) With the advantage of hindsight, Americans in the twenty-first century have reason to question the validity of the Framers' beliefs regarding presidential behavior.
The pardon of Richard M. Nixon for any criminal misconduct by President Gerald Ford in 1974 provided the most obvious example negating the Framers' assumption about the law-abiding behavior of a president. (9) While many believe partisan interest to be the basis of Ford's pardon of Nixon, (10) more recent scandals demonstrate how self-interest might also motivate a presidential pardon. (11) In particular, the questions raised by President George H. W. Bush's timely pardons of several key Iran-Contra figures, (12) and the investigation of President William Clinton by independent counsel Kenneth Starr, (13) provide examples where the pardon power may have been used for personal protection. As noted above, President Trump reportedly has considered using the pardon power to protect officials connected to his presidential election campaign as well as individuals currently serving within his administration. (14) The presidential scandals of the modern era thus present an appropriate setting for reexamining the pardon power. (15)
II. THE CONSTITUTIONAL HISTORY OF THE PARDON POWER
The United States Constitution bestows upon the President the "Power to grant Reprieves and Pardons for Offenses against the United States except in Cases of Impeachment." (16) While the pardon power is regarded as a lesser known check against the federal judiciary in the American system of checks and balances, the Framers justified granting the President this power as necessary to suppress potential rebellions. (17) However, Blackstone warned that "[i]n democracies... this power of pardon can never subsist." (18)
Specifically, the pardon power is listed in Article II of the U. S. Constitution and has few limitations. (19) The power can be exercised only for individuals who have violated federal law (20) and a person can even refuse to accept a pardon. (21) As noted in Article II, it also cannot be used in cases of impeachment. (22) Scholars have concluded that the impeachment portion of the pardon clause means that a president cannot overturn an impeachment conviction. (23)
Regarding the scope of a pardon, a president can eliminate all portions of a criminal penalty or only part of it, and he can also place specific restrictions on it if he so chooses. (24) A pardon can be issued at any time prior to, during, or after a person has been charged, or before, during, or after a criminal trial. (25) A pardon can be given to one person or a group of individuals, and it erases all penalties and other legal effects of a conviction. (26) In short, it is an "act of grace." (27) A person receiving a pardon is released from serving any remaining prison time and has his or her civil rights restored. (28) By law, it is as if the individual never committed the criminal act. (29)
The United States Supreme Court and lower federal courts have interpreted the pardon power in three notable cases. (30) In the case of Ex parte Garland, Augustus Garland was an attorney and a senator from Arkansas in the Confederate legislature. (31) In the aftermath of the Civil War, Congress passed legislation that essentially disbarred Garland as well as any person who had served in the Confederate government. (32) Garland was later pardoned by President Andrew Johnson. (33) The U.S. Supreme Court eventually voted 5-4 that the U.S. Congress could not pass such laws to punish former members of the Confederacy. (34) A majority of justices ruled that the congressional action was unconstitutional because it was a bill of attainder and an ex post facto law. (35) The Court also held that Garland could not be punished because he had received a pardon and because Congress was unable to place any limits on the presidential power to pardon. (36) Furthermore, because he was an attorney who functioned as an official within the judicial branch, he could only be removed through judicial power, not legislative power. (37)
In Ex parte Grossman, the U.S. Supreme Court voted unanimously to allow presidents to pardon individuals who had been charged with criminal contempt. (38) In 1920, Philip Grossman was arrested and charged with selling alcohol during Prohibition which violated a federal law, the National Prohibition Act, also known as the Volstead Act. (39) Grossman continued to sell alcohol after an injunction was filed in federal court. (40) He was held in contempt of court, sentenced to one year in federal prison, and fined $1,000. (41) In 1923, President Calvin Coolidge pardoned Grossman from serving the prison sentence but held that he must pay the fine. (42) A federal judge ordered Grossman back to prison after issuing a ruling that Coolidge's pardon was unconstitutional based upon the argument that presidents cannot pardon a criminal contempt charge. (43) A charge of contempt is based solely upon the authority of a judge and is unlike a defendant violating a legislative act and subsequently being convicted by a jury of his or her peers. (44)
In Grossman, Chief Justice William Howard Taft authored the unanimous opinion for the Court upholding the president's power to pardon in cases pertaining to criminal contempt. (45) In his opinion, Taft stated that the King of England maintained such power under common law and emphasized that the president must have full discretion to exercise this check over the judicial branch in order "to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law." (46) In fact, Taft noted that it is more imperative that a president have such power to pardon contempt charges because the defendant is at the mercy of a judge's arbitrary decision as opposed to being judged by a jury of fellow citizens. (47) Therefore, it is more likely that a defendant would have his or her rights violated by a single judge as opposed to a jury composed of several persons. (48) Taft also argued that presidents should be able to use the pardon in cases of criminal contempt because the statute of limitations applies to criminal contempt charges in the same manner as it applies to violations of criminal law. (49) Finally, Taft emphasized that the pardon power had been used previously by presidents in instances of criminal contempt 27 times over the last century without any abuses committed by chief executives. (50)
The most controversial pardon exercised by a president occurred in 1974 when President Gerald Ford pardoned former President Richard M. Nixon. (51) Nixon had been pardoned prior to the completion of any criminal investigation by federal prosecutors or any specific charges brought against him. (52) The case of Murphy v. Ford was not resolved by the U.S. Supreme Court but by a federal judge, Noel Fox, who served on the U.S. District Court for Western Michigan. (53) F. Gregory Murphy was an attorney in Michigan who filed a lawsuit that Ford's pardon of Nixon was unconstitutional because technically Nixon had not been found guilty of any crime nor had he even been indicted or charged with a crime. (54) Judge Fox ruled in favor of President Ford and his power to pardon Nixon. (55) In his opinion, Fox referenced the idea expressed by Alexander Hamilton in Federalist No. 74 that a well-timed pardon was necessary to quell rebellions and insurrections, (56) and he also referenced the precedent established in Ex parte Garland (1866) which held that the "pardon power is unlimited." (57) According to Fox, Watergate was a rebellious period in American history, and Nixon had orchestrated an assault on the freedoms of the American people. (58) Fox sided with Ford's desire to put an end to the divisions caused by Watergate, the end of which served the public interest because the country needed to focus on more pressing problems such as the struggling economy and social unrest. (59) In short, Ford's pardon of Nixon was within the spirit of the power granted to the Chief Executive within Article II. (60)
III. CONTROVERSIES RELATED TO THE PARDON POWER
Clearly, the risks presented by the pardon power offset the benefits that the Framers anticipated in 1787, a time when popular uprisings were a legitimate threat to a new and fragile government. (61) Typically, the pardon power receives little attention, (62) although Presidents have used it often. (63) Controversy does surface, however, when the pardon power is exercised within the context of political scandals. (64) As noted in the previous section, Gerald Ford's 1974 pardon of Richard Nixon resulted in widespread debate and scholarly examinations regarding the threats posed by the President's power to pardon. (65)
The Iran-Contra scandal also raised questions concerning the President's power to insulate individuals from prosecution within the criminal justice system. (66) The scandal involved suspicions that President Ronald Reagan and then Vice-President George H. W. Bush were involved in a plan to sell weapons to Iran in order to finance Nicaraguan rebels in violation of federal law. (67) As a result of an investigation into the matter, criminal charges were filed against a number of executive officials within the Reagan White House. (68)
While Lieutenant Colonel Oliver North and several others were convicted for their role in the Iran-Contra affair, President George H. W. Bush pardoned six key individuals related to the scandal on December 25, 1992. (69) As a result of the pardons, six central figures of the Reagan administration who orchestrated the Iran-Contra plan avoided criminal trials that likely would have produced additional information related to a serious international scandal. (70) Moreover, it is possible that President Bush may well have concealed his own involvement in the scandal by using the pardon power during his lame-duck status. (71)
The numerous scandals involving President Bill Clinton also raised questions about the abuse of presidential power. (72) At the outset of the Clinton presidency, Independent Counsel Kenneth Starr investigated Bill and Hillary Clinton for real estate investments, known as the "Whitewater" land deal, during their time in Arkansas. (73) Although the Whitewater investigation produced no evidence of misconduct on behalf of Clinton, Starr's investigation expanded to include Clinton's testimony under oath concerning his sexual affair with a White House intern, Monica Lewinsky. (74) The revelations about Clinton's behavior included allegations that he sought to conceal behavior that might be construed as illegal; therefore, it is plausible that Clinton could have promised pardons in order to prevent the disclosure of information related to his misconduct. (75) Ultimately, Clinton was impeached, in part, based upon charges that he abused his executive authority. (76) Clinton eventually used the pardon power aggressively in the last days of his presidency by issuing controversial pardons to Puerto Rican terrorists; fugitive financier, Marc Rich; bank robber, Patty Hearst; and his own brother, Roger Clinton. (77) However, there is no direct evidence that Clinton used the pardon power to conceal his own misconduct. (78)
From 2001-2009, President George W. Bush used the pardon power sparingly compared to previous presidents. (79) Bush pardoned 200 individuals during his time as president, the least of any two-term president in the modern era. (80) Both Presidents Reagan and Clinton granted over 400 pardons each during their tenure as chief executive. (81) On his last full day in office, January 19, 2009, Bush granted clemency to two former Border patrol agents. (82) Ignacio Ramos and Jose Alonso Compean were convicted in 2005 of shooting a Mexican drug runner, and the two were sentenced to 11 and 12 years in prison, respectively. Critics claimed the two men were simply performing their duties and were punished too severely. (83)
Bush's most infamous grant of clemency involved the commutation of Lewis "Scooter" Libby's prison sentence in 2007. (84) Libby, who served as Assistant to the President and Chief of Staff for Vice-President Richard Cheney, was convicted of perjury and obstruction of justice in the CIA leak scandal that involved the outing of CIA agent Valerie Plame by members of the State Department. (85) Libby's prison sentence of 30 months was commuted by Bush and he was required to pay a $250,000 fine. However, Libby was never granted a full pardon until Trump's pardon in 2018. (86) In sum, Bush disappointed conservatives by failing to use the pardon power more aggressively, particularly in high-profile cases. (87)
During his tenure as president from 2009-2017, President Barack Obama formally pardoned 212 people, with his most controversial pardon issued to Oscar Lopez Rivera. (88) Rivera was part of the Armed Forces of National Liberation (FALN) which used violence in the 1970s and 1980s in an attempt to secure Puerto Rican independence from the United States. (89) Rivera's organization claimed responsibility for 120 bombings in Chicago that claimed the lives of six persons and injured several others. (90) In 1981, Rivera was convicted on charges of seditious conspiracy, armed robbery, interstate transportation of weapons, and conspiracy to transport explosives with intent to destroy government facilities. (91) A federal judge sentenced Rivera to 55 years in prison. (92) After serving 37 years in prison, Rivera, at 74 years of age, was no longer considered a threat by the Obama administration, however, critics labeled Rivera a terrorist who never expressed remorse for his violent behavior. (93)
In exercising his powers of clemency, Obama was clearly more active in commuting prison sentences. (94) Obama shortened the prison sentences of 1,715 persons, mainly individuals convicted of non-violent drug offenses who received lengthy or mandatory sentences during the controversial War on Drugs in the 1980s. (95) Obama's most controversial commutation of a sentence involved Chelsea Manning, a private in the U. S. Army who was sentenced to 35 years in prison after being convicted of disclosing diplomatic and military secrets to WikiLeaks. (96) Manning served only seven years of a 35-year sentence because of Obama's clemency order. (97)
As noted above, President Trump's recent pardon of Sheriff Joseph Arpaio again has raised the issue of the pardon power as a controversial tool used by a chief executive. (98) Sheriff Arpaio was convicted in federal court on criminal contempt charges after he disobeyed a federal judge's order to stop detaining suspected undocumented immigrants. (99) Arpaio was employed for 24 years as sheriff of Maricopa County, Arizona, and gained notoriety for his campaign against illegal immigrants. (100) The criminal charges against Arpaio grew out of a lawsuit claiming that Arpaio repeatedly violated the rights of Hispanics by stopping persons based on racial profiling, detaining such individuals based solely on the possibility that they were in the United States illegally, and handing detainees over to immigration officials. (101) A federal district judge, G. Murray Snow, ordered Arpaio to halt his controversial activities, but he refused to halt such detentions based only on the suspicion of a person's immigration status. (102) On July 31, 2017, U. S. District Judge Susan Bolton found Arpaio guilty of criminal contempt of court and Arpaio was scheduled to be sentenced to prison on October 5, 2017. (103) However, President Trump hinted at a political rally in Phoenix, Arizona, on August 21, 2017, that he might pardon Arpaio and he followed through with the controversial pardon on August 25, 2017. (104) During the 2016 presidential campaign, Trump repeatedly expressed support for Arpaio, as the presidential candidate touted his strong policy against illegal immigration. (105)
During the remainder of his term as chief executive, President Trump could use the pardon power to conceal criminal behavior related to the Russia investigation or perhaps matters involving his own financial dealings that might surface if the Special Counsel expands its investigation. (106) Unlike previous presidents, Trump has been brazen and direct about the possibility of employing the pardon power to protect his administration. (107) In light of these circumstances, it is appropriate to ask the following questions: First, What are the available ways to discover and control the misconduct of the President? Second, Should the pardon power be limited because it might be used to protect persons who perjure themselves on the President's behalf? The following sections examine these questions in the context of investigating the actions of the President.
IV. THE EXECUTIVE ACCOUNTABILITY AND THE PARDON POWER
A. Pardons and the Mechanisms for Insuring Executive Accountability
The modern presidency has evolved well beyond the intentions of those who wrote the Constitution. (108) The Framers "assumed that the president would be political eunuch, with the duty of only assuring that laws passed by Congress, which is where the political action would occur, be faithfully executed." (109) Over the course of more than two centuries, the modern president has been transformed into the most powerful official in American politics and has been described as the nation's Chief of State, Chief Executive, Commander-in-Chief, Chief Diplomat, Chief Legislator, Chief of Political Party, as well as several other important titles. (110)
Presidential power has expanded mainly because "presidents from FDR onward were able to assert successfully claims to discretion that might in other circumstances have been rejected by the courts, Congress, influential leaders, or even the electorate." (111) The growth of presidential power--and public acceptance of the imperial presidency--has caused the public to expect that the President will take charge of the most significant issues facing the country. (112) As one scholar has observed, "Since the New Deal [in the 1930s], Americans have believed that the president plays the largest part in the national government's prime responsibility to intervene in the economy to restore, maintain, or extend economic well-being." (113) Because of the expansive power of presidents, serious concerns have arisen regarding how people in a democratic society will maintain accountability over such a powerful leader who has millions of people working on his or her behalf, both within the executive bureaucracy and in the President's political party. (114)
Hypothetically, a president can be checked in a variety of ways from abusing his or her constitutional powers or executing dangerous policies. Regrettably, specific limitations exist within each of these mechanisms. Moreover, the pardon power cannot be limited by these mechanisms if a president seeks to conceal his wrongdoing.
1. Independent Counsel Proceedings and Special Counsel Appointments
Congress responded to President Nixon's criminal activity in the Watergate scandal by voting into law the Ethics in Government Act of 1978, (115) which authorized an independently appointed counsel to investigate and prosecute misconduct by government officials, including the chief executive. (116) Although the Reagan administration argued that this accountability mechanism was an unconstitutional violation of separation of powers, the Supreme Court upheld the law as constitutional. (117)
The power of the independent counsel to hold a president accountable for his conduct was diminished by many factors. (118) First, the mechanism depended upon a criminal judicial system that required significant financial resources in a legal battle. (119) For example, the investigation of the Iran-Contra scandal by-independent prosecutor Lawrence Walsh took six years and is alleged to have cost over $35 million. (120) During the Clinton administration, taxpayers were frustrated by the $40 million investigation of the President's personal misconduct, as well as the fact that his Secretary of Agriculture, Mike Espy, was ultimately acquitted of charges concerning the acceptance of illegal gifts after the independent counsel spent $17.5 million on the investigation and prosecution of Espy. (121) Thus, the independent counsel process was viewed as an expensive and unpopular method of investigation and prosecution, particularly if convictions were not produced. (122)
Second, as demonstrated by both the Iran-Contra affair and the investigation of President Clinton, presidents can control the availability of pertinent evidence and other information by classifying materials as relating to national security or as "legitimate confidential discussions." (123) Since these documents are classified at the discretion of the president and executive officials, it is probable that a chief executive might use this power to hide his own misconduct. (124) For instance, President Clinton sought to control information given to the independent counsel by frequently citing the doctrine of executive privilege as a way to delay the investigation. (125) In addition, Clinton allegedly provided "cover stories" for witnesses testifying before the grand jury to conceal his wrongdoing. (126)
The third factor that weakened the authority of the independent counsel was the fact that historically the judiciary has shown deference to the executive branch in sensitive areas of the policy-making process. (127) Such a defense allows for presidents to conceal information, particularly in the area of foreign policy. (128) In terms of foreign affairs and national security, the Supreme Court has indicated only a limited willingness to challenge chief executives. (129)
Finally, the President's power under the Constitution to halt any criminal proceeding or investigation through the use of the pardon power further reduced the power of the independent counsel. (130) As noted above, President George H.W. Bush pardoned six people directly related to the Iran-Contra scandal in December of 1992, which basically ended any further investigation into the matter. (131) Special prosecutor Lawrence Walsh and the American public were thus, denied the opportunity for complete disclosure of information related to the Iran-Contra affair, a critical international event. (132)
As a result of these difficulties, Congress decided not to reauthorize the independent counsel law and allowed it to expire in 1999. (133) Todays the Justice Department authorizes the Attorney General to appoint a Special Counsel to conduct investigations of presidential misconduct. (134) In May of 2017, the Justice Department appointed Special Counsel Robert Mueller III, former director of the FBI, to investigate the possible connections between President Trump and the Russian government's involvement in the 2016 presidential election. (135) Similar to the problems encountered with the independent counsel law, it will be a financial burden for the Special Counsel to compete in any legal battle with President Trump and his advisers who possess virtually billions of dollars in wealth. (136) As noted above, Trump also can control the flow of information through the classification of materials and the federal courts will most likely defer to the executive branch in any legal disputes because the investigation of President Trump involves a foreign government which might raise issues of national security. (137) Finally, unlike prior presidents, Trump has been surprisingly open about using the pardon power to subvert any investigation that might harm his administration, his family, or himself. (138)
2. Civil Liability
Under U. S. law, civil lawsuits hold individuals accountable for wrongful acts. (139) However, the President retains immunity from lawsuits for wrongdoing connected to his or her official duties. (140) More recently, the President's immunity from lawsuits has been limited by the Court to his official actions and cannot be used to protect a chief executive's personal conduct. (141)
Although the pardon power does not apply directly to civil immunity, the appropriate scope of all presidential powers should be assessed simply because a President cannot easily be held accountable for his official actions. (142) In the future, presidents might behave carelessly or with malevolent intent because of this grant of civil immunity. (143) Inappropriate behavior by presidents may produce significant and lasting harm to individuals and society as a whole. International scandals, such as the Trump-Russia affair, may already have subverted the basic principles of our democratic government and could conceivably jeopardize the security of the United States. (144)
3. The News Media
By functioning outside of the political system, the news media also attempt to contribute to executive accountability. (145) News reporters, journalists, and individuals on social media are able to investigate and report on presidential activities when they exercise their rights of freedom of the press under the First Amendment. (146) The news media do not possess the power to keep the President in check by itself. (147) However, the media can play a critical role in informing and rallying the public, interest groups, and other political figures to exert political pressure upon President Trump. (148) For example, during the Watergate scandal of the 1970s, news reporters from the Washington Post played a fundamental role in uncovering the illegal activities committed by President Nixon and his associates. (149) Hence, the news media perform an important task by holding the President responsible for his behavior. (150) However, reporters are constrained in terms of gaining access to a chief executive and discovering the specifics involved in presidential policy making. (151) Throughout the history of the United States, Presidents have succeeded in withholding sensitive information from the press and are also capable of manipulating news reporters. (152) One scholar suggests that the control of the press by powerful corporate interests as well as the entertainment industry might further obstruct the ability of the news media to uncover illegal behavior committed by the President. (153) Thus, there exists no guarantee that the news media will be able to discover whether President Trump has used the pardon power to conceal information about his role in any current, or future, scandal. (154)
4. Governmental Design Under the Constitution
The United States Constitution empowers the American people to hold the three branches of government accountable for their decisions. Hence, the Constitution is based upon two vital components. First, the Constitution defines the basic tenets of a democracy (155) by allowing citizens to elect their representatives. (156) If President Trump is not responsive to the needs of the electorate, he may be voted out of office after four years under the structure and processes of a government designed by the Constitution. (157) Second, because the Framers feared tyranny and a concentration of power, the Constitution separates power among the legislative, executive, and judicial branches and establishes a system of "checks and balances" among the three branches. (158) For instance, Congress can check the President with its authority to override presidential vetoes and its ability to impeach and remove the President from office. The judicial branch has the power to issue rulings which force the President to act or refrain from acting. (159) Thus, Congress and the Supreme Court should, in theory, be able to prevent the President from abusing his powers under the design of the Constitution. (160)
In reality, however, representatives in Congress may be more responsive to public opinion or partisan interests than to an objective assessment of presidential misconduct in deciding whether impeachment is an appropriate course of action, as demonstrated by the case of President Clinton. (161) While members of Congress are elected to serve the American public, it is possible that presidential misconduct will go unchecked and be insufficiently examined if the short-term perception of the public is that the President's actions do not merit punishment. (162) In the era of social media, the public's perception can be shaped more easily by inaccurate information or insufficient recognition of the dangerous consequences of particular offenses. (163) If a reliance on public pressure is the basis for providing a check on President Trump, the results, most likely, would be uncertain at best. (164)
Overall, the design of the Constitution offers limited opportunities to control a President's behavior. (165) In the area of foreign policy, for example, the federal judiciary is often hesitant to confront the President. (166) Moreover, congressional investigations are frequently frustrated by the President's control of information and congressional deference to public opinion, whether or not that opinion is formed by accurate information. (167) Because members of Congress are concerned mainly with remaining in office, they are frequently motivated by their own partisan interests, and often advance a specific political agenda or simply serve the preferences of a particular group of citizens. (168)
Ideally, an educated citizenry that participates regularly in the voting process should be able to hold a President accountable for his or her actions. (169) However, based upon academic studies, many voters are uninformed about the political system and the behavior of government officials. (170) This is exacerbated by the news media and political parties that continuously provide voters with abstract information during presidential election campaigns, focusing on a candidate's personality and image rather than substantive topics. (171)
In the Supreme Court case of Morrison v. Olson, a lone dissenting justice offered a constitutional argument against the need for an independent counsel to investigate government misconduct. (172) Justice Antonin Scalia adopted the impractical view that voters simply control their President by holding elections every four years. His dissenting opinion wrongly presumes that complete and accurate information about presidential actions is readily available to American voters. (173) As noted above, President Trump can control the flow of information by classifying government materials as "secret" or "confidential." (174) Scalia's argument additionally fails to note that a lame duck second-term President who is less vulnerable to the electorate might more readily engage in illegal, or unethical, conduct. (175)
The current mechanisms which seek to hold Presidents accountable for misbehavior are clearly exacerbated because of the pardon power which allows chief executives to derail investigations related to White House scandals. Any attempts to hold President Trump or future Presidents accountable for their behavior might additionally be limited by the anticipated reaction of spending taxpayer money to fund the Special Counsel and congressional investigations related to the Trump administration, particularly if the inquiries do not produce any substantive findings. (176)
In the future, presidential scandals will most likely involve serious offenses and, if the Trump investigations are unable to uncover any misconduct by the President, the public might grow weary of supporting further investigations. (177) If this diminution of concern about misconduct is coupled with a curbing of the Special Counsel mechanism, it may be more difficult to investigate presidential misconduct generally, including serious criminal behavior. Hence, the lack of control over the President's accountability, the potential for employing the pardon power in an abusive manner, and a reduction in funding for investigations might allow Trump, as well as future Presidents, to conceal criminal actions. From this standpoint, it is necessary for our democracy to consider possible limits to the President's power to pardon if the exercise of that power provides a means for the executive leader to hide misconduct. (178)
B. Reassessing the Pardon Power
1. What if Trump Offers Pardons as a Means to Conceal His Misconduct?
Evidence of Russia's involvement in the 2016 presidential election surfaced in October 2016, when American intelligence agencies accused Russian President Vladimir Putin and his government of hacking into the e-mails of Democratic candidate Hillary Clinton through the servers of the Democratic National Committee and her campaign manager, John Podesta. (179)
The Russian hacking of the servers occurred between January 2015 and May 2016 and, soon thereafter, Trump seemingly joked about the Russians possibly uncovering 33,000 missing e-mails from Clinton's home server. (180) A critical part of the allegations into the Trump campaign's relationship with the Russian government involves meetings between Russian officials and members of Trump's campaign staff as well as close family members. (181)
Two weeks after Trump secured the Republican nomination in July 2016, the presidential candidate's son and son-in-law, Donald Trump Jr. and Jared Kushner, as well as his campaign manager, Paul Manafort, met with Natalia Veselnitskaya, a Russian lawyer with connections to the Kremlin. (182) In December 2016, roughly one month after the election, Michael Flynn, Trump's National Security Advisor, spoke on the telephone with Russian Ambassador Sergey Kislyak about reducing sanctions against Russia. (183) Flynn was subsequently asked by Trump to resign when the meeting was made public by The Washington Post. (184) During this same time period, as Trump was preparing to transition into the presidency, Jared Kushner apparently met with Russian officials at Trump Tower in New York City in an attempt to create a "back-channel" between the Kremlin and the White House. (185) During the Senate confirmation hearings of Attorney General Jeff Sessions, Senator Al Franken asked Sessions if he had any meetings with Russian officials during the campaign. (186) Sessions told the Senate Judiciary Committee that he had no such meetings, but it was later revealed that he met twice with a Russian ambassador. (187)
Perhaps the most serious accusation directed toward President Trump himself is the possibility that he obstructed justice in the Russia investigation. (188) After Trump fired FBI Director James Comey on May 9, 2017, it was later revealed in Comey's testimony before Congress that Trump pressured him into backing away from investigating Michael Flynn and also wanted assurances from Comey that the President himself was not under investigation. (189) The day after Comey's firing, Trump met with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak at the White House and referred to Comey as a "nut job," telling the Russian officials that he had reduced a great burden on himself by firing Comey. (190) In addition, The New York Times reported that Trump revealed classified information to the Russian diplomats, providing details of an intercepted plot by ISIS to bomb planes using concealed laptops. (191)
While the President by law can share classified information with anyone, the information revealed was technically the property of the Israeli government. (192) As a result of the Comey firing and subsequent reports related to the reasons for Trump's actions, newly appointed Attorney General, Rod Rosenstein assigned Special Counsel Robert Mueller to investigate whether Trump obstructed justice. (193) The series of events discussed above raise serious legal and political issues for the Trump administration moving forward. (194) Is it possible that Trump could use the pardon power as a means to protect his aides, family members, or perhaps cover his own misconduct? (195)
One means of assessing the potential harm of an unrestrained presidential power to pardon is to examine hypothetically the application of the pardon power by President Trump. (196) For example, in exchange for providing favorable testimony, certain individuals could be promised a pardon by Trump if they were subsequently charged with perjury or obstructing congressional investigators. (197) Trump may attempt to persuade and coerce the testimony of witnesses, and he may also consider using his powers to thwart the various investigations. (198)
Because Trump faces reelection in the year 2020, he is readily accountable to the electorate for his actions. If the pardons were issued in order to protect persons who perjured themselves from further investigation, Trump could deliver the pardons strategically after the 2020 presidential election. This would minimize the political damage to Trump as well as Republican members of Congress. The use of pardons in this manner would generate intense, short-term scrutiny from the news media and Congress. The public's relatively short attention span, combined with Trump's often dramatic behavior and the multitude of policy issues competing for public attention would likely cause the scandal to eventually slip away from the public's agenda. (199)
By using the pardon power in this way, Trump's alleged misconduct concerning the Russian government could be hidden from Special Counsel Mueller and congressional committees. (200) More importantly, future Presidents might abuse the pardon power in this fashion and thus prevent the disclosure of crucial information related to national security, such as the information relating to the Iran-Contra scandal during the Reagan administration--which was sealed from public scrutiny through pardons issued by President George H. W. Bush. (201) In the interests of democratic government, it appears appropriate to consider limitations that could be placed upon the presidential power to pardon.
2. Could Trump Pardon Himself?
It is unclear whether a President could pardon himself. (202) As noted above, there are virtually no limitations placed upon the President's power to pardon. (203) Legal scholars have argued that a President would not be able to pardon himself because it would present a conflict of interest and place the President above the law. (204) Prior to President Richard M. Nixon's resignation in August of 1974, the Justice Department issued an opinion stating that Nixon could not pardon himself "[u]nder the fundamental rule that no one may be a judge in his own case." (205)
However, the Justice Department's legal opinion did not specify how such a legal limit would be placed upon a President. (206) Other scholars have noted that a President might actually be able to pardon himself. (207) For instance, during the impeachment of President Clinton in 1998, the House Judiciary Committee conducted a hearing where it discussed whether Clinton could legally pardon himself. (208) Congressman Bob Goodlatte, a Republican from Virginia, noted at the hearing that "[t]he prevailing opinion [was] that the [President can pardon himself." (209) The answer to the question of whether a President could pardon himself eventually will have to be decided by the federal courts if, and when, a President actually attempts to pardon himself. (210) If Trump does attempt to pardon himself, it would provide an opportunity for the U.S. Supreme Court to settle the constitutional issue. (211)
3. The Need to Limit the Pardon Power
The hypothetical pardons of Trump discussed above demonstrate the risks inherent in the President's ability to use the pardon power to conceal his own criminal activities. (212) Since there are limited mechanisms for maintaining accountability and control over the President, he or she should not be permitted to obstruct the discovery of damaging information. By offering pardons to persons who are accomplices to a President's criminal activities, the democratic process can be subverted through the self-serving actions of one individual.
The real possibility that Trump might pardon individuals within his administration, or even himself, to subvert the investigations illustrates two real harms in permitting unfettered presidential discretion. (213) First, by depriving the public of information, the President damages a basic preconception for democratic government. (214) Robert Dahl lists access to information as a primary requirement for maintaining any form of democracy. (215) Dahl states that "[t]he worst situation would be one in which a single elite with interests and ambitions of its own controlled the major sources of information." (216) The use of the presidential pardon to protect individuals who are connected to the President's criminal activities creates this precise situation.
Using pardons, executive privilege, and the ability to classify documents as either secret or confidential, the President can control the information and testimony received by the Special Counsel or other investigative bodies. (217) Therefore, the public and other branches of government are deprived of an opportunity to discover whether the President is honest and accountable. (218)
Second, discretionary use of the pardon power prevents reforms that can improve the governing system. (219) One of the strengths of the United States political system is its flexibility. Presidential pardons prevent the recognition of problems, thus impeding the evolution of governmental organizations. For example, because of President Bush's pardons of the Iran-Contra organizers, the public was denied complete information about the scandal. (220) This lack of information hinders the evaluation and reform of domestic and foreign policy operations in order to prevent future unlawful activities. (221)
C. Mechanisms to Limit the Pardon Power
1. A Post-Conviction Limitation
In order to prevent the pardon power from being used by a President to conceal his misconduct, pardons should be withheld until after a criminal trial so that the prosecution and defense can investigate and publicize any information relevant to allegations of wrongdoing. (222) For example, the pardons of the Iran-Contra figures would not have been possible under this limitation. (223) The subsequent trials of these individuals would have allowed the courts to force the President to hand over relevant documents. (224)
Because guilty pleas are a common occurrence in the criminal justice system, it could be argued a witness might plead guilty to avoid a trial. (225) Under the proposed limitation, the President could issue the pardon only after the guilty plea. (226) This limitation would, most importantly, stop a President from using the pardon power to subvert any investigation that could produce damaging information. (227)
Certain factors would make even this situation more attractive than the possibility of the President using the pardon power before a conviction. "Contrary to popular belief, a pardon does not obliterate the record or stigma of a conviction, nor does it establish the innocence of a person." (228)
Hence, a defendant might resist pleading guilty to avoid the disgrace that results from admitting to a crime. (229) Furthermore, although the acceptance of a pardon arguably implies an admission of guilt, mere confession of culpability will not adequately advance the accountability of the President. (230) Prior to accepting a guilty plea, a judge must ensure that the defendant comprehends the unlawful acts committed. (231) Thus, before accepting the plea, the judge should ask questions of the defendant in open court to elicit information about the crimes at issue. (232) A judge would be able to determine through questioning of the defendant whether a President and the defendant were conspiring to hide information from the public. If a judge finds that the honesty of the defendant is questionable, the judge can prevent the issuance of a pardon by denying the guilty plea. Consequently, the defendant would be compelled to answer questions from the judge in an honest fashion or else face the real possibility that the judge might order a full trial. A complete trial would allow the media and the public to ascertain specifics regarding the charges against the defendant, and the President's ability to conceal any criminal activity would be severely limited.
A post-conviction limitation on the President's pardon power would increase accountability. (233) Without such a limitation, President Trump might be tempted to offer pardons to prevent the disclosure of damaging information in a trial involving a coconspirator. (234) Interestingly, these scenarios may have already occurred in the post-Watergate era. (235) President George H. W. Bush's pardons of the Iran-Contra figures in 1992 fit conveniently into this scenario. (236) It also is plausible that President Clinton might have contemplated using the pardon power in this manner to influence the testimony of witnesses and conceal his personal misconduct in the investigations related to Paula Jones and Monica Lewinsky. (237)
2. Specification of Charges
The pardon power can also be limited by requiring a President to specify charges when issuing a pardon. (238) The use of the pardon power in its current unlimited form basically prevents the criminal justice process from investigating the alleged crime. (239) The news media and Congress would, therefore, be able to focus their attention upon the specific crimes committed in the course of investigating any scandals related to the White House. (240) In addition, prosecutors would be able to examine other allegations that were not listed in the specification of charges. Executive accountability would definitely be increased by this limitation because the President would be required to note the specific crimes committed by the offender.
D. Reconciling the Purposes of the Pardon Power
The original purposes of the pardon power would be left intact under the proposed limitations discussed above. (241) In 1787, rebellions were a practical concern for the Framers of the Constitution. (242) In the modern era, the American political system is considerably more stable, and most crimes against the government do not amount to the significant threat of rebellion experienced by the Founding Fathers in the late eighteenth century. (243) The proposed limitations would still provide the President with the power to defuse a revolt by issuing pardons, and thus fulfill Alexander Hamilton's "principal argument" for the pardon power. (244)
However, a pardon could only be granted if a person was convicted of a crime or pled guilty before the issuance of the pardon. In order to "alleviat[e] national stress and restor[e] tranquility," (245) Presidents would be able to grant clemency and amnesty programs under the designed limitations. (246) In short, pardons would continue to be made available for public welfare purposes, such as the Vietnam-era draft evaders. (247) Moreover, the original concern of James Wilson about maintaining pardons as a way to ensure testimony from accomplices would also be satisfied by the post-conviction limitations and the specification of charges. (248)
V. IMPLEMENTING A LIMITATION ON THE PARDON POWER
A. Congressional Action and Constitutional Amendments
In the controversial aftermath of the Civil War, Congress made numerous attempts to regulate the President's pardon power. (249) For example, President Andrew Johnson's "Christmas 1868 pardons" (250) caused the Senate Judiciary Committee to pass a resolution declaring such pardons unauthorized under the Constitution. (251) Subsequently, the Supreme Court ruled that the pardon power was not subject to restriction by congressional legislation. (252) Because of the Court's actions, scholars have concluded that "Congress is constitutionally unable to restrict the President's power under the [pardon] clause by resolution, legislation^] or other sanction." (253)
The Constitution states that amendments to the Constitution can be initiated either by Congress or two-thirds of the state legislatures. (254) Congress could impose limitations upon the pardon power by proposing a constitutional amendment. (255) While the amendment process is slow, difficult, and relatively easy to block by a minority of states, it is conceivable that Trump's abuse of the pardon power might arouse political support to impose limitations that enhance the democratic system. (256)
B. Judicial Action
The federal courts could place limitations upon the pardon power through their ability to interpret constitutional language in a flexible manner. (257) While the constitutional pardon provision is relatively straightforward, (258) the Supreme Court has applied pragmatic considerations in adjusting governmental powers to solve constitutional problems. (259) This discussion focuses upon the possibility that the judiciary might take action if the pardon power is abused by President Trump. (260)
It is fairly clear that the Framer's intention does not support the idea of a post-conviction limitation on the pardon power. For example, no such regulation ever existed at common law and there is no evidence that the Framers thought otherwise. (261) Likewise, the precedent of the Supreme Court does not favor this type of limitation. (262) Based upon the broad language of the Supreme Court's opinion in Ex parte Garland (263) a federal district court judge in 1975 upheld President Ford's pardon of Richard Nixon as constitutional. (264) In Garland, the Court ruled that the President's pardon power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment [and]... cannot be fettered by any legislative restrictions." (265)
However, as argued by Justice William Brennan, "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." (266) In order to address a very real and serious problem, not fully anticipated by the Framers or previous Court rulings, the Supreme Court could place a post-conviction limitation on the pardon power. The scandals of the modern era, namely Watergate, Iran-Contra, the Monica Lewinsky affair, and Trump's alleged collusion with the Russian government, indicate a need for the Supreme Court to correct the flawed and potentially self-serving component of the presidential pardon power.
The alternative limitation requiring the specification of offenses finds support in the history of pardon practices in England. (267) Supreme Court case law supports this limitation, as the legality of a pardon without the specification of charges has never been addressed by the Court. (268) In fact, scholars agree that if the pardon power is interpreted "in light of the meaning the framers intended it to have, [there is] a reasonable doubt of the constitutionality of the Nixon pardon." (269) Although it would most likely be less effective than the post-conviction limitation in terms of reducing the potential for abuse, this restriction has a solid historical basis and could be acknowledged by the judiciary based upon the precedent established in England. (270) Moreover, unlike the post-conviction limitation, the specification of charges requirement is less likely to face opposition because it would be viewed as less intrusive upon the powers of the presidency.
Since the passage of the Ethics in Government Act of 1978, President Trump and three other Presidents have now been investigated by special prosecutors for scandals ranging from criminal allegations involving foreign policy to personal misconduct related to extra-marital affairs. (271) In a political era where investigations and headline-producing media exposes are becoming commonplace, President Trump may be seeking ways to conceal criminal behavior or inappropriate conduct from the public. (272) Given these circumstances, the pardon power can easily be employed to cover illegal or improper activities that could jeopardize a President's place in history. (273)
As it exists today, the presidential pardon power poses serious risks for our democratic governing system, which aspires to hold elected officials accountable for their conduct. (274) The President's ability to conceal criminal action or other transgressions within the White House poses a serious risk to the country's national security. Because current mechanisms available to hold Presidents accountable have obvious weaknesses, the pardon power should be limited in a narrow manner in order to strengthen our governing system by providing the public access to information about the alleged misdeeds committed by President Trump and his associates. While attempts to limit presidential power are controversial, President Trump's potential abuse of the pardon power demonstrates how it might be used to thwart the current investigations related to the Trump administration's alleged collusion with the Russian government. (275) The pardon power as an unlimited power for President Trump creates an environment where the judicial system might be undermined because information concerning his part in a scandal could be easily concealed. (276) Because the concentration of power in a chief executive will produce destructive consequences for the rule of law, the pardon power should be limited in order to strengthen American democracy. (277)
Scott P. Johnson (*)
(*) Professor of Political Science, Frostburg State University. This article was originally published in 1999 (33 NEW ENG. L. REV. 907) to address the impeachment of then-President Bill Clinton. It has been substantially updated to reflect the current investigations surrounding President Donald Trump.
(1) See Julie Hirschfeld David and Maggie Haberman, Trump Pardons Joe Arpaio, Who Became the Face of Crackdown on Illegal Immigration, N.Y. TIMES, August 26, 2017, at Al; see also Peter Baker Trump Pardons Scooter Libby in a Case that Mirrors His Own, N. Y. TIMES: POLITICS (April 14, 2018), https://www.nytimes.com/2018/04/13/us/politics/trump-pardon-scooter-libby.html. Libby served as a top adviser to Vice-President Dick Cheney and was convicted in 2007 of perjury and obstruction of justice in the Valerie Plame case where her identity as a CIA officer has been disclosed to the public.
(2) See Charlie Savage, Can Trump Pardon Himself? Explaining Presidential Clemency Powers, N.Y. TIMES: POLITICS (July 22, 2017), https://www.nytimes.com/2017/07/21/us/politics/trump-pardon-himself-presidential-clemency.html; Donald J. Trump (@realDonaldTrump), TWITTER (July 22, 2017, 4:35 AM), https://twitter.com/realDonaldTrump/status/888724194820857857.
(3) See Gregory Korte, Election to Obstruction: The Many Tentacles of the Trump-Russian Investigation, USA TODAY (June 17, 2017), https://www.usatoday.com/story/news/politics/2017/06/17/trump-russia-investigation-has-many-tentacles/102888184/.
(5) See Kevin Urhmacher and Kim Soffen, A Guide to The Five Major Investigations of The Trump Campaign's Possible Ties to Russia, WASH. POST, (July 17, 2017), https://www.washingtonpost.com/graphics/national/trump-russia-investigations/?utm_term=.8e2dbc840a()d.
(6) See, e.g., Kristen H. Fowler, Limiting the Federal Pardon Power, 83 IND. L. J. 1651, 1659-60 (2008).
(7) See, e.g., George Mason, Objections to the Proposed Federal Constitution, in 1 DOCUMENTS or AMERICAN CONSTITUTIONALISM & LEGAL HISTORY 117 (Melvin I. Urofsky ed. 1989) ("The President of the United States has the restrained Power of granting Pardon for Treason; which may be sometimes exercised to screen from Punishment those whom he had secretly instigated to commit the Crime, and thereby prevent a Discovery of his own Guilt.").
(8) See, e.g., William F. Duker, The President's Power to Pardon: A Constitutional History, 18 WM. & MARY L. REV. 475, 503 (1977) (James Iredell, in response to Edmund Randolph's expressed concern that a president might use the pardon power to conceal criminal activity, stated that "[t]he probability of a President of the United States committing an act of treason against his country is very slight.") (quoting James Iredell, Answer to Mason's Objections by Iredell, in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES, 350, 351-52 (P. Ford ed. 1963).
(9) See Proclamation No. 4311, 39 Fed. Reg. 37,635 (Sept. 13, 1974), reprinted in 88 Stat. 2502 (1974). See generally BOB WOODWARD & CARL BERNSTEIN, THE FINAL DAYS (1976) (discussing various pardon scenarios considered by the Nixon administration).
(10) See The Fallout from Ford's Rush to Pardon, TIME (Sept. 23, 1974), http://content.time.com/time/subscriber/article/0,33009,908732,00. html (explaining that only one month into his presidency, President Gerald Ford issued a pardon of Richard Nixon. The timing of the pardon prompted "widespread cynical suspicion that Nixon as President had exacted a pledge of a pardon from Ford before naming him Vice President and putting him in the line of succession.").
(11) See John Leo, Ethics: On Granting an Iranscam Pardon, TIME (Apr. 11, 1988), http://content.time.com/time/subscriber/article/0,33009,967171.00.html.
(12) See Evan Thomas, Pardon Me, NEWSWEEK (Jan. 3, 1993, 7:00 PM), http://www.newsweek.com/pardon-me-192108 (explaining that before leaving office in 1993, George Bush pardoned former defense secretary Caspar W. Weinberger, former CIA agent Duanne R. Clarridge, former CIA official Clair E. George, former national security advisor Robert C. McFarlane, former assistant secretary of state Elliot Abrams, and Head of the CIA's Central American Task Force Alan D. Fiers Jr. In regard to their roles in the Iran-Contra affair, "Bush argued that all six had acted from patriotic motives 'whether their actions were right or wrong.'").
(13) See Susan Schmidt & Juliet Eilperin, A Narrow Focus for Starr, WASH. POST (Aug. 12, 1998), http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/report081298.htm.
(14) See Savage, supra note 2.
(15) See generally DAVID R. SIMON, ELITE DEVIANCE (2011) (discussing the dramatic increase in American political scandals during the modern era, specifically since the assassination of President John F. Kennedy in 1963).
(16) U.S. CONST, art. II, [section] 2. cl. 1.
(17) THE FEDERALIST No. 74, at 502 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) ("[T]he principal arguments for reposing the power of pardoning... in [the President] is this--In seasons of insurrection or rebellion, there arc often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth....").
(18) 4 WILLIAM BLACKSTONE, COMMENTARIES *397.
(19) LEE EPSTEIN & THOMAS G. WALKER, CONSTITUTIONAL LAW FOR A CHANGING AMERICA: INSTITUTIONAL POWERS AND CONSTRAINTS 256-58, (9th ed. 2017).
(20) Id. at 257.
(21) See United States v. Wilson, 32 U.S. 150, 150 (1833).
(22) U.S. CONST, art. II, [section] 2. cl. 1.
(23) See Michael Stokes Paulsen, The President's Pardon Power is Absolute. NAT. REV. (July 25, 2017, 7:30 PM), http://www.nationalreview.com/article/449816/russia-controversy-donald-trump-prcsidential-pardon-power-congressional-impeachment.
(24) See EPSTEIN & WALKER, supra note 19, at 253.
(25) Id. at 254.
(21) Wilson, 32 U.S. at 150.
(28) EPSTEIN & WALKER, supra note 19, at 252.
(30) See Ex parte Grossman, 267 U.S. 87 (1925); Ex parte Garland, 71 U.S. 333 (1867); Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975).
(31) Ex parte Garland, 71 U.S. at 375.
(32) Id. at 374.
(33) Id. at 375.
(34) Id. at 380-81.
(35) Id. at 377. A bill of attainder occurs when a legislature declares a person guilty of a crime without a trial and ex post facto involves a person being punished prior to the passage of a law.
(36) Ex parte Garland, 71 U.S. at 380.
(38) See Ex parte Grossman, 267 U.S. 87 (1925).
(39) Id. at 107.
(43) Ex parte Grossman, 267 U.S. at 107-08.
(44) Id. at 108.
(45) Id. at 107-22.
(46) Id. at 120.
(47) Id. at 122.
(48) Id. at 116.
(49) Ex parte Grossman, 267 U.S. at 115-16.
(50) Id. at 122.
(51) See EPSTEIN & WALKER, supra note 19, at 256.
(53) See Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975).
(54) Id. at 1372.
(55) Id. at 1375.
(56) Id. at 1373.
(57) Id. at 1374.
(59) Murphy, 390 F. Supp. at 1374.
(61) See MELVIN I. UROFSKY & PAUL FINKELMAN, A MARCH OF LIBERTY: A CONSTITUTIONAL HISTORY OF THE UNITED STATES, VOL. 1: FROM THE FOUNDING TO 1980 88-90 (2d ed. 2002). The Framers of the Constitution had fresh in their memories the events underlying Shay's Rebellion of 1786-1787, in which people protesting policies that heavily taxed farmers and the urban poor were killed by American militia.
(62) For example, the pardon of New York Yankees owner George Steinbrenner received little attention by the media. Steinbrenner was convicted of violating federal campaign laws by donating $100,000 to the Nixon campaign in 1972. See Julie Johnson, Steinbrenner Pardoned by Reagan for '72 Election Law Violation, N.Y. TIMES (Jan. 20, 1989), http://www.nytimes.com/1989/01/20/us/steinbrenner-pardoned-by-reagan-for-72-election-law-violations.html.
(63) For example, Presidents Kennedy, Johnson, and Nixon granted 2,314 pardons. Hugh MacGill, The Nixon Pardon: Limits on the Benign Prerogative, 1 CONN. L. REV. 56,71 (1974).
(64) See Anatomy of a Pardon: Why Weinberger Walked, NEWSWEEK (Jan. 10, 1993, 7:00 PM), http://www.newsweek.com/anatomy-pardon-why-weinberger-walked-192310 [hereinafter Anatomy of a Pardon]. The special prosecutor who investigated the Iran-Contra affair, Lawrence Walsh, argued that Bush was covering up his role in the scandal. Id. In fact, after the pardons were delivered, Walsh threatened to focus the investigation directly on the President. Id.
(65) See, e.g., Leonard B. Boudin, The Presidential pardons of James R. Hoffa and Richard M, Nixon: Have the Limitations on the Pardon Power Been Exceeded?, 48 U. COLO. L. REV. 1, 1 (1976); Christopher C. Joyner, Rethinking the President's Power of Executive Pardon, 43 FED. PROBATION 16, 16 (1979); MacGill, supra note 63, at 71.
(66) See Christopher E. Smith & Scott P. Johnson, Presidential Pardons and Accountability in the Executive Branch, 35 WAYNE L. REV. 1113, 1115-22 (1989).
(67) See PETER KORNBLUH & MALCOLM BYRNE, THE IRAN-CONTRA SCANDAL: A DECLASSIFIED HISTORY 1 (The New Press 1993).
(68) See, e.g., Joe Pichirallo, McFarlane Enters Guilty Plea Arising from Iran-Contra Affair, THE WASHINGTON POST (March 12, 1988) https://www.washingtonpost.com/archive/politics/1988/03/12/mcfarlane-enters-guilty-plea-arising-from-iran-contra-affair/0eac6fcb-367e-4a41-bf65-dd9d067a0537/?utm_term=.55ccOe6673b6.
(69) See Stanley I. Kutler, Forgive and Forget: George Bush Pardons Iran-Contra Defendants, NATION, Jan. 18, 1993, at 41. North was indicted and found guilty for his role in the Iran-Contra affair, but his conviction was later overturned because of the possibility that evidence presented at trial was based on congressional testimony by North for which he had been granted immunity. See Bob Cohn, Pure and Patient--Or Obsessed?, NEWSWEEK (Jan. 3, 1993, 7:00 PM), http://www.newsweek.com/pure-and-patient-or-obsessed-192088. In addition to Oliver North, several figures in the Iran-Contra affair were convicted for their roles in the scandal: Carl R. Channell (conservative fund raiser), Richard R. Miller (conservative publicist), Albert A. Hakim (financial organizer of the scandal), Thomas G. Clines (financial organizer), and Richard V. Secord (retired Air Force major general). See Thomas, supra note 12.
(70) See Anatomy of a Pardon, supra note 64.
(71) During the Iran-Contra affair, George Bush was serving as Vice-President to President Ronald W. Reagan (1981-1989). Some argue that Reagan and Bush had intimate knowledge of the plan to sell weapons to Iran in exchange for funding the Contras in Nicaragua. See Michael Kinsley, The Criminals' Lobby, NEW REPUBLIC, Jan. 18, 1993, at 6.
(72) David S. Broder & Richard Morin, Americans See 2 Distinct Clintons, WASH. POST (Aug. 23, 1998), https://www.washingtonpost.com/archive/politics/1998/08/23/americans-see-2-distinct-clintons/902595ba-d2bc-4089-adf0-13cb762fa3e7/?utm_term=.f0d488e81 e29.
(73) See Marilyn W. Thompson, Caught in the Whitewater Quagmire, WASH. POST, Aug. 28, 1995, at Al. Independent Counsel Kenneth Starr said that he had a strong reason to believe that President Clinton lied under oath in his testimony regarding the Whitewater land deal. See Marilyn W. Thompson, Starr Wouldn't Go With Lone Witness for Whitewater Referral, WASH. POST (Nov. 20, 1998), https://www.washingtonpost.eom/archive/politics/1998/l 1/20/starr-wouldnt-go-with-lone-witness-for-whitewater-refcrral/af3ed028-a44d-4914-87ae-394b921c34al/?utm_term=.6c5da70ab28f. In drawing his conclusions, Starr had relied solely upon the truthfulness of testimony from Clinton's former business partner, James McDougal. See id. Starr therefore decided not to file an impeachment report, citing the lack of sufficient evidence. Id.
(74) Clinton's impeachment was ultimately based on the conclusion by a majority of members of the House of Representatives that Clinton committed perjury in his grand jury testimony about whether he had had a sexual affair with Monica Lewinsky, and that Clinton had obstructed justice by coaching his secretary to lie about the Lewinsky-Clinton relationship during her grand jury testimony. See Richard Lacayo, Washington Burning, TIME (Dec. 21, 1998, 2:56 PM), http://edition.cnn.eom/ALLPOLITICS/time/l 998/12/21/washington.html.
(75) Although Clinton has not been charged with using the pardon power in this way, the President's power to pardon allows for this hypothetical scenario to develop in a scandal. It is quite possible that the key Iran-Contra figures knew that their pardons were forthcoming from President Bush. Hence, the pardons might have been used as a mechanism to ensure that additional information was not revealed concerning Bush's involvement in the scandal. See Kutler, supra note 69, at 41.
(76) See Eric Pooley, Just A Sex Cover Up?: High Crimes?: Or Just a Sex Cover up?, TIME (Sept. 21, 1998), http://content.time.com/time/subscriber/article/0,33009,989114-l,00.html. "Clinton abused his power... by using public denials, lies to the White House staff and the doctrine of Executive Privilege to delay the investigation." Enough to Impeach?, TIME (Sept. 21, 1998), http://content.time.com/time/subscriber/article/0,33009,989115-2,00.html.
(77) See William Jefferson Clinton, My Reasons for the Pardons, N.Y. TIMES, (Feb. 18, 2001), http://www.nytimes.com/2001/02/18/opinion/my-reasons-for-the-pardons.html.
(79) See Eric Lichtblau, Bush Commutes 2 Border Patrol Agents' Sentences, N.Y. TIMES (January 19, 2009), https://www.nytimes.com/2009/01/20/washington/20scntence.html.
(81) See MacGill, supra note 63.
(82) See Lichtblau, supra note 79.
(84) See Scott Shane and Neil L. Lewis, Bush Commutes Libby Sentence, Saying 30 Months 'Is Excessive,' N.Y. TIMES (July 3, 2007), https://www.nytimes.com/2007/07/03/washington/03 libby.htm1.
(86) Id.; see also Baker, supra note 1.
(87) See Lichtblau, supra note 79.
(88) See Charles Lane, Forget Chelsea Manning: This is the Obama pardon you should be mad about. WASH. POST. (January 18, 2017), https://www.washingtonpost.com/opinions/forget-chelsea-manning-this-is-the-obama-pardon-you-should-be-mad-about/2017/01/18/1b3c8b6a-ddb0-11 e6-ad42-f3375f271 c9c_story.html?utm_term=.5180968a7a73.
(94) Gregory Kortc, Obama grants 330 more commutations, bringing total to a record 1,715, USA TODAY (January 19, 2017), https://www.usatoday.com/story/news/politics/2017/01/19/obama-grants-330-more-commutations-bringing-total-record-1715/96791186/.
(95) Matta Apuzzo, After Obama Push for Clemency, Hints of Reversal Likely to Come, N. Y. TIMES (November 22, 2016), https://www.nytimes.com/2016/11/.../obama-commutations-criminal-justice-trump.html. Obama commuted the sentences of more persons than the past eleven presidents combined.
(96) Ellen Nakashima and Sari Horwitz, Obama Commutes Sentence of Chelsea Manning, Soldier Convicted for Leaking Classified Information, WASH. POST. (January 17, 2017), https://www.washingtonpost.com/world/national-security/obama-largely-commutes-sentence-of-chelsea-manning-us-soldier-convicted-for-leaking-classified-information/2017/01/17/B205ala-dcf8-lle6-ad42-D375f271c9c_story.html?utm_term=.cb459dbl3802.
(98) See Hirschfeld & Haberman, supra note 1.
(103) See Megan Cassidy, Former Maricopa County Sheriff Joe Arpaio Guilty of Criminal Contempt, THE REPUBLIC: AZCENTRAL.COM (July 31, 2017), (http://www.azcentral.eom/story/news/local/phoenix/2017/07/31/maricopa-county-sheriff-joe-arpaio-found-guilty-criminal-contempt-court/486278001/.
(104) See Hirschfeld & Haberman, supra note 1.
(106) See Savage, supra note 2.
(108) See generally, RICHARD E. NEUSTADT, PRESIDENTIAL POWER AND THE MODERN PRESIDENTS: THE POLITICS OF LEADERSHIP FROM ROOSEVELT To REAGAN (Free Press, 1991).
(109) See Sanford Levinson, Clinton and Impeachment: Some Reflections, LAW & COURTS: NEWSLETTER OF THE AM. POLITICAL SCI. ASS'N, Fall 1998, at 17.
(110) See CLINTON ROSSITER, THE AMERICAN PRESIDENCY 16-40 (2d ed. 1960).
(111) See ROBERT DAHL, DEMOCRACY IN THE UNITED STATES: PROMISE AND PERFORMANCE 99 (4th ed. 1981).
(112) See Bruce Fein, A History of the Expansion of Presidential Power, N.Y. TIMES (Apr. 28, 2012), http://www.nytimes.com/2012/04/28/opinion/a-history-of-the-expansion-of-presidential-power.html.
(113) See EVERETT CARLL LADD, THE AMERICAN POLITY: THE PEOPLE AND THEIR GOVERNMENT 183 (2d ed. 1987).
(114) See generally ARTHUR SCHESLINGER, THE IMPERIAL PRESIDENCY, (Houghton Mifflin, 1973).
(115) 28 U.S.C. [section][section] 591-599 (1982 & Supp. V 1987). The independent counsel law is contained in Title VI of the Act.
(116) See generally KATY J. HARRIGER, INDEPENDENT JUSTICE: THE FEDERAL SPECIAL PROSECUTOR IN AMERICAN POLITICS (1992) (analyzing the independent counsel law in operation).
(117) In Morrison v. Olson, the Reagan administration argued that the independent counsel law violated separation of powers principles. The Supreme Court rejected this argument, holding that the law was valid under separation of powers principles because it limited the roles of Congress and the judiciary in the functioning of the independent counsel while maintaining sufficient executive branch authority over the prosecutorial function. 487 U.S. 589, 685-96 (1988). See also Stuart Taylor, Supreme Court Upholds Law on Special Prosecutors; 7-1 Ruling is Rebuff to Reagan, N.Y. TIMES (June 30, 1988), http://www.nytimcs.com/1988/06/30/us/supremc-court-vote-upholds-law-special-prosecutors-7-l-ruling-rebuff-reagan.html?pagewanted=all.
(118) See HARRIGER, supra note 116.
(119) See Thomas, supra note 12.
(121) See Viveca Novak, Was this A Bad Idea?, CNN.COM: ALL POLITICS (Dec. 14, 1998) http://www.cnn.eom/ALLPOLITICS/time/l998/12/07/independant.council.html.
(122) Id. By September, 1998, it was estimated that Ken Starr's investigation of President Bill Clinton's dealings in the Whitewater scandal cost $40 million. The separate investigation of the Monica Lewinsky affair was estimated at $4.5 million. See James Carney et al., Nightmare's End, TIME, Feb. 22, 1999, at 36.
(123) See Enough to Impeach, supra note 76. The Starr Report alleges that Clinton tried to use his power of executive privilege in order to conceal his relationship with Monica Lewinsky. See id. Clinton's attorneys argue that Starr was "intruding into 'legitimate confidential discussions.'" Id. The Bush administration also sought to stop the trial of Oliver North based upon an asserted need to protect sensitive secret documents. See Ronald K. Noble, The Independent Counsel Versus The Attorney General in a Classified Information Procedures Act-Independent Counsel Statute Case, 33 B.C. L. REV. 539, 542 (1992). The President's action ultimately forced the independent counsel to drop several of the most serious charges against North because disclosing the information would "compromise national security." Id. at 557.
(124) Justice Douglas's dissent in Gravel v. United States, which involved the release of the Pentagon Papers during the Vietnam War, highlighted the risks of executive control over information. 408 U.S. 606, 633-48 (1972).
(125) See Enough to Impeach, supra note 76.
(126) See id. According to Monica Lewinsky, Clinton told her that she could explain her frequent visits to the White House by saying that she was visiting her friend, Betty Currie (the President's secretary). See id. This was to be used as a 'cover story' to hide the affair between Clinton and Lewinsky. Independent prosecutor Kenneth Starr has called this "a case of subornation of perjury." See Pooley, supra note 76.
(127) See Dames & Moore v. Regan, 453 U.S. 654, 687 (1981). The Court ruled that the President has the power to settle claims against foreign entities when Congress has acquiesced in the President's action.
(128) See Aaron Wildavsky, Two Presidencies, CAL. ST. U, http://www.csuchico.edu/~ccturner/syllabi/TwoPrcsidencies.pdf (last visited April 6, 2018). Wildavsky argues that the President is limited by Congress, the courts, and the public in the domestic arena. Id. However, he also argues that the President is preeminent in foreign affairs. Id.
(129) See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936).
(130) See Anatomv of a Pardon, supra note 64.
(133) See David Johnston, Attorney General Taking Control As Independent Counsel Law Dies, N.Y. TIMES (June 30, 1999), http://www.nytimes.com/1999/06/30/us/attorney-general-taking-control-as-independent-counsel-law-dies.html.
(135) See Rebecca R. Ruiz & Mark Lander, Robert Mueller, Former FBI Director, Is Named Special Counsel for Russia Investigation, N. Y. TIMES (May 18, 2017), https://www.nytimes.com/2017/05/17/us/politics/robert-mueller-special-counsel-russia-investigation.html.
(136) See Ravi Somaiya, Donald Trump's Wealth and Poll Numbers Complicate News Media's Coverage, N.Y. TIMES (July 25, 2015), https://www.nytimes.com/2015/07/25/business/media/donald-trumps-wealth-and-poll-numbers-complicate-news-medias-coverage.html.
(137) See Gravel v. United States, 408 U.S. 606, 633-48 (1972) (Douglas, J., dissenting); see also Dames & Moore v. Regan, 453 U.S. 654 (1981).
(138) See Savage, supra note 2.
(139) See CHRISTOPHER E. SMITH, COURTS, POLITICS, AND THE JUDICIAL PROCESS 121 (2d ed. 1997).
(140) See Nixon v. Fitzgerald, 457 U.S. 731, 757 (1982) (holding that a president is absolutely immune from civil suits regarding his official actions); see also Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982) (finding that other executive branch officials are also immune from civil liability for actions taken in the good faith performance of their duties).
(141) See Clinton v. Jones, 520 U.S. 681, 692 (1997) (ruling unanimously that the Constitution does not grant the President immunity from civil lawsuits based upon private conduct).
(142) See Nixon, 457 U.S. at 757.
(144) See Korte, supra note 3.
(145) See generally MICHAEL B. GROSSMAN & MARTHA J. KUMAR, PORTRAYING THE PRESIDENT: THE WHITE HOUSE AND THE NEWS MEDIA (1981).
(149) A dramatic exception to this rule occurred during Watergate, when Washington Post reporters gained fame and fortune while providing a notable service to the American public by unraveling the scandal. See generally ROBERT WOODWARD & CARL BERNSTEIN, ALL THE PRESIDENT'S MEN (1974).
(151) See id.
(152) Statements by presidential aides illustrate that manipulation of the press is commonplace. "[O]ne of Lyndon Johnson's press secretaries has written, 'All presidents seek to manage the news, and all are successful to a degree;' a high-ranking aide to Gerald Ford has said, 'We are trying to make [the press] use what we want them to use, not what they want. That is what we are trying to do, and it often works.'" See HOWARD L. REITER, PARTIES AND ELECTIONS IN CORPORATE AMERICA 251 (1987).
(153) See MICHAEL PARENTI, DEMOCRACY FOR THE FEW 156-71 (5th ed. 1988).
(155) In its most basic formulation, "democracy starts with the assumption of popular sovereignty, vesting ultimate power in the people... Democracy requires a decision-making system based on majority rule, with minority rights protected." See JACK C. PI.ANO & MILTON GREENBERG, THE AMERICAN POLITICAL DICTIONARY 7 (5th ed. 1979).
(156) See U.S. CONST, art. I, [section] 2, cl. 1 (election of House of Representatives); U.S. CONST, art. II, [section] 1, cl. 1 (election of President); U.S. CONST, amend. XVII (election of Senate).
(157) Political parties provide the basis for this electoral accountability. One political scientist concludes that "[p]arties make policy and provide for accountability. They connect ordinary citizens to government output. . . [T]hey make democracy work by organizing an inert mass of individuals into blocs powerful enough to provide legitimizing support for the policy enacted." See RICHARD L. KOLBE, AMERICAN POLITICAL PARTIES, AN UNCERTAIN FUTURE 6 (1985).
(158) James Madison declared that, "[t]he accumulation of all powers legislative, executive, and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." THE FEDERALIST NO. 47, at 324 (James Madison) (Jacob E. Cooke ed., 1961).
(159) See United States v. Nixon, 418 U.S. 683 (1974). The Supreme Court rejected President Nixon's claim of executive privilege in the Watergate case. See id. at 707. The Supreme Court concluded that "the legitimate needs of the judicial process may outweigh [assertions of] Presidential privilege." Id.
(160) See THE FEDERALIST NO. 47, supra note 158.
(161) See Michael Kinsley, The Outrage That Wasn't, TIME, Dec. 28, 1998/Jan. 4, 1999, at 134 (discussing the American public's lack of outrage about President Clinton's alleged perjury and adultery).
(162) See id.
(163) See id.; see also Farhad Manjoo, Social Media's Globe-Shaking Power, N.Y. TIMES (NOV. 16, 2016), https://www.nytimes.com/2016/ll/17/technology/social-medias-globe-shaking-power.html.
(164) See Kinsley, supra note 161, at 134; Manjoo, supra note 163.
(165) See Wildavsky, supra note 128, at 162.
(166) See id. at 163.
(167) For instance, the Oliver North trial revealed that the Reagan Administration had secretly withheld incriminating documents from the congressional investigation of the Iran-Contra scandal while simultaneously assuring Congress that it was cooperating fully. See Carney, supra note 122, at 273.
(168) See generally ROBERT A. DAHL, WHO GOVERNS? (2nd ed. 2005). Dahl discusses the idea that interest groups influence Congress and the political agenda at the expense of the public interest. See also DAVID MAYHEW, CONGRESS: THE ELECTORAL CONNECTION (2nd ed. 2004). Mayhew concludes that the most important goal for members of Congress is securing re-election.
(169) This view of the electorate as enforcing the accountability of public officials through elections underlies several political science models concerning voting and political parties in democratic governing systems. See KOLBE, supra note 157, at 1-24.
(170) One political scientist described the results of systematic research over several decades:
[C]lassic studies of American voting patterns emphasized groups, parties, and candidates, everything except what earlier scholars had stressed--issues. The voters did not know much about what the researchers knew were the great issues of the day.... Voters tended to assume that candidates they liked shared their opinions, even when the candidates did not.
REITER, supra note 152, at 141-42.
(171) See THOMAS E. PATTERSON, THE MASS MEDIA ELECTION: How AMERICANS CHOOSE THEIR PRESIDENT 138 (1980); see also L. Patrick Devlin, Contrasts in Presidential Campaign Commercials of 1988, 32 AM. BEIIAV. SCI. 389 (1989). As Michael Dukakis discovered in the 1988 presidential election, the attention of the public and the media can be directed toward other issues through the use of skilled public relations strategies. See id.
(172) See Morrison, 487 U.S. at 697 (Scalia, J., dissenting).
(173) Scalia wrote: "[W]hen crimes are not investigated and prosecuted fairly, nonselectively, with a reasonable sense of proportion, the President pays the cost in political damage to his administration.... The President is directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame."
Id. at 728-29 (Scalia, J., dissenting).
(174) See Pooley, supra note 76, at 43. President Clinton was successful at delaying the investigation of his misconduct by classifying certain evidence as confidential. See id. In the area of foreign policy, Presidents Bush and Reagan were even more successful at classifying material related to national security as "secret" in order to discourage the investigation of the Iran-Contra scandal. See Thomas, supra note 12.
(175) See JAMES R. HEDTKE. LAME DUCK PRESIDENTS: MYTH OR REALITY (2002).
(176) The investigations of the Iran-Contra scandal, Whitewater, and the Monica Lewinsky affair have combined to utilize over $80 million of taxpayer money from 1986-1998. See Independent Probes of Clinton Administration Cost Nearly $80 Million, CNN (Apr. 1, 1999, 11:32 AM), http://edition.cnn.com/ALLPOLITICS/stories/1999/04/01/counsel.probe.costs.
(177) See Kinsley, supra note 161, at 135.
(178) See Fowler, supra note 6, at 1660-62.
(179) Korte, supra note 3.
(180) See Dan Merica, Spicer: Trump Was 'Joking' When He Asked Russia to Hack Clinton, CNN POLITICS (June 26, 2017, 4:45 PM), https://www.cnn.com/2017/06/26/politics/trump-clinton-russia-hacking-email-joking/index.html.
(181) See Jo Becker, Matt Apuzzo & Adam Goldman, Trump Team Met With Lawyer Linked to Kremlin During Campaign, N.Y. TIMES (July 8, 2017), https://www.nytimes.com/2017/07/08/us/politics/trump-russia-kushner-manafort.html.
(182) See K.K. Rebecca Lai & Alicia Parlapiano, What We Know About Donald Trump Jr. 's Russia Meeting, N.Y. TIMES (July 18, 2017), https://www.nytimes.com/interactive/2017/07/18/us/politics/donald-trump-jr-russia-meeting.html.
(183) Maggie Haberman et al., Michael Flynn Resigns as National Security Adviser, N.Y. TIMES (Feb. 13, 2017), https://www.nytimes.com/2017/02/13/us/politics/donald-trump-national-security-adviser-michael-flynn.html.
(184) See id.
(185) See Carrie Cordero, How to Understand Kushner's 'Back-Channel', POLITICO MAG. (June 6, 2017), https://www.politico.com/magazine/story/2017/06/06/how-to-understand-kushners-back-channel-215232.
(186) Greg Price, Did Jeff Sessions Lie to Congress? Al Franken Thinks So, Doubles Down on Previous Accusation, NEWSWEEK (June 10, 2017, 9:46 AM), http://www.newsweek.com/sessions-franken-lie-623977.
(188) See Devlin Barrett et al., Special Counsel is Investigating Trump for Possible Obstruction of Justice, Officials Say, WASH. POST (June 14, 2017), https://www.washingtonpost.com/world/national-security/special-counsel-is-investigating-trump-for-possible-obstruction-of-justice/2017/06/14/9ce02506-5131-11e7-b064-828ba60fbb98_story.html?utm_term=.3180356c3aac.
(189) See id.
(190) David A. Graham, Trump Told the Russians That 'Nut Job' Comey's Firing Relieved 'Great Pressure', THE ATLANTIC (May 19, 2017, 5:36 PM), https://www.theatlantic.com/politics/archive/2017/05/trump-told-russians-that-nut-job-comeys-firing-relieved-prcssure/527451/.
(192) See id.
(193) See Barrett, supra note 188.
(194) See Price, supra note 186.
(195) See Savage, supra note 2.
(197) The Starr Report contends that President Clinton obstructed justice when he tried to conceal his extra-marital affair with Monica Lewinsky. See Pooley, supra note 76, at 46-47. In particular, Clinton may have tried to influence the testimony of Lewinsky and Betty Currie, his secretary. See Ruth Marcus & Michael Grunwald, Clinton's Fate May Ride on Obstruction Case, WASH. POST (Aug. 7, 1998), https://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/obstruct080798.htm.
(198) See Pooley, supra note 76, at 48. One of the eleven charges against President Clinton in the Starr Report alleges that he tampered with witnesses, namely his personal secretary Betty Currie. See id. at 47.
(199) International political controversies such as North Korea or Middle East concerns could easily rise on the national agenda. See generally JOHN W. KINGDON, AGENDAS, ALTERNATIVES, AND PUBLIC POLICIES (1984) (discussing how issues come and go from the nation's policy agenda).
(200) The Starr Report contains several charges related to alleged attempts by Clinton to conceal his misconduct. See Pooley, supra note 76, at 43.
(201) See notes 68-71 and accompanying text.
(202) See Savage, supra note 2.
(203) See id.
(204) See id.; see also Brian C. Kalt, Pardon Me? The Constitutional Case Against Presidential Self-Pardons, 106 YALE L.J. 779 (1996).
(205) Presidential or Legislative Pardon of the President, 1 Op. O.L.C. Supp. 370, 370(1974).
(206) See id.
(207) See Savage, supra note 2.
(212) See id.
(213) See Savage, supra note 2.
(214) See DAHL, supra note 111, at 428.
(217) As noted above, Presidents Reagan, Bush, and Clinton all utilized one or more of these tactics to delay or prevent further investigations of scandals related to their presidencies. See Thomas, supra note 12.
(218) See id.
(219) There are many examples of reforms initiated in response to the discovery of abuses within the government. During the 1970's, abuses of authority committed by the Central Intelligence Agency led to increased congressional oversight of intelligence activities. See LADD, supra note 113, at 738. The Watergate scandal led to the introduction of the independent counsel law. See 28 U.S.C. [section][section] 591-599 (2012); see also HARRIGER, supra note 116.
(220) See Thomas, supra note 12.
(221) See id.
(222) The framers did not reject a post-conviction limitation on the pardon power. It was not considered because Luther Martin withdrew the issue from consideration at the constitutional convention. See G. Sidney Buchanan, The Nature of a Pardon Under the United States Constitution, 39 OHIO ST. L.J. 36, 50 (1978). Many state legal systems contain limitations on the pardon power. For example, forty-four states impose limitations on the governors' power to pardon. One of the most common limitations is the post-conviction pardon. See Macgill, supra note 63, at 68-69.
(223) For example, former defense secretary Caspar Weinberger was indicted on felony charges of perjury, making false statements, and obstructing congressional investigators. He was awaiting a January 1993 trial when President Bush pardoned him in December of 1992. See Thomas, supra note 12. Under the proposed limitation, Bush would have been unable to pardon Weinberger until after his conviction. This would have allowed the disclosure of additional information related to the Iran-Contra scandal.
(224) See Nixon, 418 U.S. at 707 (concluding that "the legitimate needs of the judicial process may outweigh [assertions of] Presidential privilege").
(225) See SMITH, supra note 139, at 92.
(226) See Fowler, supra note 6, at 1660-61.
(227) Id. at 1668.
(228) See Joyner, supra note 65, at 20.
(229) See id.
(230) See Burdick v. United States, 236 U.S. 79, 94 (1915) (indicating in dictum that a pardon "carries an imputation of guilt; acceptance a confession of it.").
(231) See JAMES W. H. MCCORD, SANDRA L. MCCORD & C. SUZANNE BAILEY, CRIMINAL LAW AND PROCEDURES FOR THE PARALEGAL 500 (4th ed. 2012).
(233) See generally Macgill, supra note 63.
(234) See Savage, supra note 2.
(235) See Thomas, supra note 12.
(236) See Kutler, supra note 69.
(237) See Lacayo, supra note 74, at 59.
(238) This limitation would be consistent with the legal community's consensus that "for a pardon truly to be effective, an 'offense' must have been committed." See Joyner, supra note 65, at 19.
(239) See Garland, 71 U.S. (4 Wall.) at 380 81.
(240) See Smith & Johnson, supra note 66, at 1125. See generally WOODWARD & BERNSTEIN, supra note 149.
(241) The limitations proposed in this article are generally consistent with presidential practices for most pardons. For example, only three of the 2,314 pardons granted by Presidents Kennedy, Johnson, and Nixon preceded conviction on criminal charges. Macgill, supra note 63, at 71.
(242) The framers had good reason to be concerned about rebellions in light of the New York farmers' rebellion of 1776, Shay's Rebellion in Massachusetts in 1786, and, after the Constitution was written, the Whisky Rebellion of 1794. In each case, military forces were called upon to defeat bands of citizens who had taken direct action against landlords, courts, or tax collectors. See HARRELL R. RODGERS & MICHAEL HARRINGTON, UNFINISHED DEMOCRACY: THE AMERICAN POLITICAL SYSTEM 108-10(1981).
(243) See THE FEDERALIST NO. 47, supra note 17.
(245) Richard A. Saliterman, Reflections on the Presidential Clemency Power, 38 OKLA. L. REV. 257, 264 (1985).
(246) See id.
(247) If the issue of a post-conviction limitation posed serious problems for amnesty programs, one of two measures could be taken: (1) an attempt could be made to draw a distinction between amnesty programs and pardons, with only official pardons retaining the post-conviction limitation, see Macgill, supra note 63, at 72, or; (2) the post-conviction limitation could be limited to executive branch personnel in order to prevent the President from hiding misconduct within his administration. See Smith & Johnson, supra note 66, at 1125-31.
(248) See Buchanan, supra note 222, at 50-51.
(249) See Duker, supra note 8, at 513 18.
(250) Johnson's pardons were granted for "all persons guilty of treason and acts of hostility." Id. at 517.
(252) See Garland, 71 U.S. (4 Wall.) at 381 (invalidating a congrcssionally-mandated loyalty oath for lawyers that interfered with the President's pardoning power); see also Boudin, supra note 65, at 15-16.
(253) See Boudin, supra note 65, at 6 (citing United States v. Klein, 80 U.S. (13 Wall.) 128 (1871)). In that case, a presidential pardon allowed the recovery of property in contravention of a statute designed to give the pardon the opposite effect. Klein, 80 U.S. (13 Wall.) at 139.
(254) See U.S. CONST, art. V.
(255) See id.
(256) In the aftermath of President Ford's pardon of Richard Nixon, Senator Walter Mondale proposed a constitutional amendment to permit Congress to veto presidential pardons by a two-thirds vote of each House. See Duker, supra note 8, at 537. This proposal never received full consideration. See id.
(257) The jurisprudence of the First Amendment, which prohibits Congress from enacting laws abridging freedom of expression, is an obvious example. The Supreme Court has considered a variety of statutes that place restrictions upon free expression. See United States v. Grace, 461 U.S. 171, 183-84 (1983) (upholding portions of a congressional statute forbidding "assemblages" on grounds of Supreme Court buildings).
(258) See U.S. CONST, art. II, [section] 2, cl. 1 (prohibiting presidential pardons in cases of impeachment). This raises the hypothetical question of whether an impeached President, for example Bill Clinton, could be pardoned by a new president, for example Vice-President Al Gore. See David B. Rivkin Jr. & Lee A. Casey, Could President Gore Pardon Clinton?, WALL STREET J. (Sept. 21, 1998, 2:24 AM), https://www.wsj.com/articles/SB906158982622621500.
(259) See Morrison, 487 U.S. at 696-97 (approving the formalized procedures for independent counsel despite concerns involving the separation-of-powers principle).
(260) It is also likely that the court might avoid the issue by classifying the scope of the pardon power as a "political question," and thus non-justiciable. See Buchanan, supra note 222, at 55-59.
(261) Macgill, supra note 63, at 65.
(262) See Garland, 71 U.S. (4 Wall.) at 381.
(263) The Court repealed a congrcssionally-mandated loyalty oath for lawyers that interfered with the President's pardoning power. See id. at 380-81.
(264) See Murphy, 390 F. Supp. at 1375.
(265) See Garland, 71 U.S. (4 Wall.) at 380.
(266) See William J. Brennan, The Constitution of the United States: Contemporary Ratification, in AMERICAN CONSTITUTIONAL LAW: INTRODUCTORY ESSAYS AND SELECTED CASES (Alpheus Thomas Mason & Donald Greir Stephenson, Jr. eds., 16th ed. 2013).
(267) For instance, according to the law of Richard II, it was necessary to specify the circumstances of the crime when issuing pardons for murder, treason, and rape. See Macgill, supra note 63, at 76. The English scholars Blackstone and Coke also discussed the requirements for specifying charges when granting pardons. See id. at 75-78.
(268) See id. at 83.
(269) Duker, supra note 8, at 532. The U.S. Supreme Court never ruled on the constitutionality of the Nixon pardon, although a federal district court judge declared that the pardon was constitutional. See Murphy, 390 F. Supp. at 1375; Duker, supra note 8, at 532.
(270) See Macgill, supra note 63.
(271) The Iran-Contra affair occupied the administrators of Presidents Reagan (1981-1989) and Bush (1989-1993) while several scandals were investigated during the Clinton administration (1993-2001). President Carter (1977-1981) served out his years relatively free of scandal and investigation.
(272) See Savage, supra note 2.
(273) See id.
(274) See id.
(275) See Korte, supra note 3.
(276) See Savage, supra note 2.
(277) See THE FEDERALIST NO. 47, supra note 17.
|Printer friendly Cite/link Email Feedback|
|Author:||Johnson, Scott P.|
|Publication:||Faulkner Law Review|
|Date:||Mar 22, 2018|
|Previous Article:||CAN YOU BE A THOMIST AND A TEXTUALIST? A NATURAL LAW DEFENSE OF JUSTICE SCALIA'S JURISPRUDENCE.|
|Next Article:||POLICING FOR PROFIT: HOW URBAN MUNICIPALITIES' FOCUS ON REVENUE HAS UNDERMINED LAW ENFORCEMENT LEGITIMACY.|