Reprinted with permission from The American Prospect
The barriers to amending the Constitution are so high that I've long thought it pointless to pursue any reform that way. But after four years of Donald Trump, I've changed my mind. In fact, I'm suffering from a bout of what Kathleen Sullivan in 1995 in these pages called "constitutional amendmentitis."
Sullivan—later dean of Stanford Law School—used the term for conservatives' feverish advocacy of amendments in the mid-1990s. The amendments would have, among other things, imposed a balanced federal budget, limited congressional terms, authorized laws banning flag-burning, given the president a line-item veto, and outlawed abortion. It was a good thing those amendments didn't receive the necessary two-thirds approval in both houses of Congress, much less ratification by three-fourths of the states.
We've had few amendments in our history, and none recently. The last amendment of consequence came 50 years ago, in 1971, reducing the voting age to 18. Instead, constitutional change has come through the Supreme Court, a route, however, that with the Court's current 6-3 conservative majority is now mainly open to the right as a means of reversing past liberal decisions and stymieing new liberal policies.
But the Roberts Court is not what's given me amendmentitis, at least not yet. It's Trump or, more precisely, the failure of our system of checks and balances to correct for or remove a manifestly unfit chief executive.
The Trump presidency ought to open up a general national discussion about whether the requirements for impeaching and convicting a president are too steep. In other democracies, a parliamentary vote of "no confidence" suffices to bring down a prime minister; here we have to get two-thirds of the Senate to find the president guilty of "high crimes and misdemeanors." There hasn't been a single conviction in all of American history (though Richard Nixon, had he not resigned, might have been the one exception). Not only does the exceptionally high threshold for conviction protect unfit presidents; it also gives them less reason to follow constitutional norms.
In light of the Trump presidency, we also ought to have a general debate about revising Article II of the Constitution, which after its clear opening sentence about the executive power being vested in the president is a confused mess, grossly inadequate in its statement of presidential powers and their limits. The failure to establish unambiguous constitutional authority for independent regulatory agencies, inspectors general, and other internal checks on the president within the executive branch puts them all at risk from presidential overreach and a Court that endorses the theory of the unitary executive.
But the immediate issue—one for which there may be some hope of change—is the pardon power, already used by Trump to benefit friends and allies and still available, in his final days in office, to protect members of his family and himself from prosecution.
Under the Pardon Clause, the president has the "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of impeachment." Two principal limits on the power are generally accepted. Besides the express exception of impeachment, the clause has also been read to refer only to federal law ("Offences against the United States") and therefore to put crimes under state law beyond the president's power to pardon.
But much about the Pardon Clause is murky. Does it allow the president to pardon himself? Or to pardon those whose illegal actions may have benefited him and who may have even acted on his instructions? Or to throw a blanket pardon across his entire family for past crimes?
In June 2018, Trump declared, "As has been stated by numerous legal scholars, I have an absolute right to pardon myself." In fact, many legal scholars don't agree, and the one opinion with some official status—albeit inconclusive weight—comes from the Office of Legal Counsel in the Justice Department, which said in 1974, "Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself."
As Asha Rangappa writes in The Washington Post, while the Biden Justice Department may or may not choose to prosecute Trump, it will have to do so if Trump pardons himself. A self-pardon cannot be allowed to stand since it would enable future presidents to put themselves above the law for crimes committed before being elected and while in office. "The presidency," Rangappa writes, "would effectively become a risk-free, crime-laundering opportunity, which is fundamentally at odds with a nation built on the rule of law."
Even this Supreme Court, with its three Trump appointees, might strike down a self-pardon on the basis of general constitutional principles. There is also a straightforward originalist case against a self-pardon based on the meaning of "grant" and "pardon," as those words were used in the 18th century. Both terms implied two distinct parties, a grantor and a grantee, someone who bestowed a pardon and another person who received it. But there is no certainty the Court will see it that way.
The Trump presidency ought to open up a general national discussion about whether the requirements for impeaching and convicting a president are too steep.
Even if the Court were to strike down a self-pardon, it would leave the pardon power too open-ended. Bob Bauer and Jack Goldsmith argue that presidents may still be prosecuted for corruption in cases in which they grant pardons in return for a benefit, such as withholding testimony in an impeachment trial. But they concede that the pardons themselves would still be valid, and since it would be difficult to prove bribery and no prosecution would take place until after a president leaves office, the incentives for corrupt use of the pardon power would remain.
In the last Congress, Rep. Jamie Raskin introduced a bill that would have expressly invalidated a self-pardon by a president, while Rep. Adam Schiff proposed legislation clearly establishing that the use of a pardon as a bribe by a president is a criminal offense. But the former would only be advisory to the Supreme Court, and the latter seems inadequate as a deterrent.
What we need is an amendment limiting this relic of royal prerogative. Executive pardons do have a legitimate role as a means of giving mercy and at times of putting political conflicts to rest, as George Washington did when he used the pardon power after the Whiskey Rebellion. But an open-ended pardon power that can be used to prevent a president and his circle of family and confederates from being held accountable for crimes is an invitation to corruption and political entrenchment.
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