Thank you so much for featuring political violence on this mornings' newsletter. Violence is coming, mostly, but not exclusively, from right extremists who have their minds poisoned by social media. I don't know where this ends. It's frightening.
I also enjoyed yesterday's podcast with Bob Bauer and Jack Goldsmith. I strongly support…
Thank you so much for featuring political violence on this mornings' newsletter. Violence is coming, mostly, but not exclusively, from right extremists who have their minds poisoned by social media. I don't know where this ends. It's frightening.
I also enjoyed yesterday's podcast with Bob Bauer and Jack Goldsmith. I strongly support the reforms they suggest. However, I have read Bauer and Goldsmith's legal arguments in Lawfare and their other writings suggesting Congress can pass a law to limit the President's power to pardon. In Constitutional Law 101, future lawyers learn that you can't change the parameters of a constitutional power with an ordinary statute. (You actually picked up on this during your interview.) I've talked to other attorneys and I can't find any of them who agree with Bauer/Goldsmith that Congress can change the President's pardon power via statute.
They point out that Congress can pass a law making it a crime for a person to bribe the President to receive a pardon. (I think that's already a crime, but whatever.) Absolutely. And you know what? The President can issue a second pardon to stop the federal bribery prosecution. Not sure how they think that moves the ball forward.
They are on more solid ground when it comes to Congress passing a law making it a crime for a President to solicit or accept a bribe for a pardon. (As they point out, it's not clear existing criminal laws on this subject apply to the President...though I think they do.) This ultimately leads to the question of the self-pardon. Bauer/Goldsmith seems to think Congress can pass a law prohibiting self-pardons. Once again, whether the constitutional pardon power includes self-pardons is up to the courts not Congress.
Don't get me wrong. I very much want to limit the President's pardon powers. People who think the Founders wanted the President to a robust pardon powers miss the fact that at the time the Constitution was drafted the federal criminal code only identified a handful of federal crimes and the Department of Justice didn't exist. The issue of what was a crime and the prosecution of those crimes was left almost entirely to states. The expansion of the federal criminal code, and resulting increase in federal prosecutors and the federal judiciary, has via the back door increased the President's pardon power. (Of course, the President can only issue pardons as to federal matters.) We do need to find a way to limit that pardon power. Unfortunately, Bauer/Goldsmith's suggestion Congress pass a law to limit the President's pardon power does not seem workable.
Thank you so much for featuring political violence on this mornings' newsletter. Violence is coming, mostly, but not exclusively, from right extremists who have their minds poisoned by social media. I don't know where this ends. It's frightening.
I also enjoyed yesterday's podcast with Bob Bauer and Jack Goldsmith. I strongly support the reforms they suggest. However, I have read Bauer and Goldsmith's legal arguments in Lawfare and their other writings suggesting Congress can pass a law to limit the President's power to pardon. In Constitutional Law 101, future lawyers learn that you can't change the parameters of a constitutional power with an ordinary statute. (You actually picked up on this during your interview.) I've talked to other attorneys and I can't find any of them who agree with Bauer/Goldsmith that Congress can change the President's pardon power via statute.
They point out that Congress can pass a law making it a crime for a person to bribe the President to receive a pardon. (I think that's already a crime, but whatever.) Absolutely. And you know what? The President can issue a second pardon to stop the federal bribery prosecution. Not sure how they think that moves the ball forward.
They are on more solid ground when it comes to Congress passing a law making it a crime for a President to solicit or accept a bribe for a pardon. (As they point out, it's not clear existing criminal laws on this subject apply to the President...though I think they do.) This ultimately leads to the question of the self-pardon. Bauer/Goldsmith seems to think Congress can pass a law prohibiting self-pardons. Once again, whether the constitutional pardon power includes self-pardons is up to the courts not Congress.
Don't get me wrong. I very much want to limit the President's pardon powers. People who think the Founders wanted the President to a robust pardon powers miss the fact that at the time the Constitution was drafted the federal criminal code only identified a handful of federal crimes and the Department of Justice didn't exist. The issue of what was a crime and the prosecution of those crimes was left almost entirely to states. The expansion of the federal criminal code, and resulting increase in federal prosecutors and the federal judiciary, has via the back door increased the President's pardon power. (Of course, the President can only issue pardons as to federal matters.) We do need to find a way to limit that pardon power. Unfortunately, Bauer/Goldsmith's suggestion Congress pass a law to limit the President's pardon power does not seem workable.