Biden should push to limit presidential pardon powers

At the Constitutional Convention in Philadelphia, in 1787, held to decide how independent America was going to be governed as a republic, Alexander Hamilton proposed that the president be vested with the power to pardon. The proposal, seen as a pre-Independence legacy of the royal prerogative of pardon that had been present under English rule, was met with considerable opposition. Many delegates were worried about the potential abuse of this power by a sitting president and, having done away with King George III, were apprehensive of installing another king. Roger Sherman tabled a motion to limit the power by making a presidential pardon subject to the consent of the Senate. The matter was hotly debated during the two-year ratification process that followed the submission of the constitution to the states but was defeated. Ever since, under Article II (section 2) the powers of the president have included the unconditional “Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” This power has been exercised to varying extents by all presidents to date, with the exceptions of William Harrison (the ninth president, 1841) and James Garfield (20th President, 1881), both of whom died not long after assuming office. The power to pardon vested in the president is not unique to the United States. The pardon is essentially the remnant of the era of absolute rulers and has survived to this day in a ceremonial form except under autocracies. In a Constitutional democracy, this power appears to be an anomaly particularly in view of the principle of the separation of powers that ensures the independence of the judiciary. There could not be a greater threat to the independence of the judiciary than vesting the head executive with the power to overturn a decision of the judiciary. As such, in most countries, various checks have been imposed on the exercise of this power so that it does not rest unconditionally in the hands of any individual. Canada, like the United States, gained independence from England. On becoming a constitutional monarchy, the royal prerogative to pardon was delegated to the Governor General appointed by the monarch. However, consistent with constitutional convention the Governor General grants a pardon on the advice of a cabinet minister. In practice, it is the governor in council, that is, the cabinet, which exercises the prerogative to pardon. The process is administered by the Parole Board of Canada and pardons are recommended mostly where there are compelling circumstances such as evidence of miscarriage of justice or of undue hardship. Unlike the U.S. President, Canada’s Governor General cannot on their own decide to issue a pardon. That the Canadian process is superior to that of the United States is where it is left solely to the discretion of the president becomes obvious from the numerous cases where a presidential pardon has raised questions about this broad authority. Starting with George Washington, presidents have issued pardons that have ignited controversy. In 1795, Washington chose to forgive two men sentenced to death for treason after participating in protests against proposed taxation despite the opposition of Alexander Hamilton, the treasury secretary who wanted the president to exert the full force of the law against the protesters. Controversial presidential pardons are too numerous to list, but some recent examples would be in place to illustrate the gross miscarriage of justice this authority has and can cause. In 1974, Gerald Ford pardoned his predecessor Richard Nixon while Congress was preparing to investigate him for obstruction of justice. In 1977, Jimmy Carter granted an unconditional pardon to hundreds of thousands of men who had evaded the draft during the Vietnam War (1955-1975) and was heavily criticized by veterans’ groups and others for allowing unpatriotic lawbreakers to get off scot-free. For his pardon of Caspar Weinberger in the Iran-Contra scandal in 1992, George Bush (senior) was accused of favouritism as Weinberger had been Secretary of Defence under Ronald Reagan and Bush was vice-president. In 2001, Bill Clinton issued a pardon for his half-brother, Roger Clinton, a clear case of nepotism. In 2017, Barack Obama issued a pardon for General James Cartwright and was criticized for sparing a well-connected leaker of classified information who had lied to the FBI. President Trump, during his last few days in power, has continued to use the power to pardon associates, friends, and relatives guilty of offences such as perjury, tax evasion, and obstruction of justice. He even threatens to extend the power to pre-emptive pardons, including a self-pardon leaving the country’s judiciary to decide on the legitimacy of such actions. Now more than ever before, the dangers of letting the power rest in the hands of the president alone have become evident. As the issue relates directly to the powers enjoyed by the president, Joe Biden should himself initiate action to remove this threat to justice. In his State of the Union address to Congress in February, Biden should urge legislators across party lines to study the unjustifiable use of the pardon by various presidents and revisit the proposal made at the Philadelphia convention by Roger Sherman. They should enact legislation for introducing checks on the presidential power to pardon thereby upholding the doctrine of the separation of powers and avoiding the possibilities of travesty of justice. For types of checks on this power, they can find many examples from constitutional democracies around the World. However, they would not need to look far: they can learn from Canada with which they share the same colonial heritage. The United States must realize that this 18th-century tradition has no place in the 21st century. Ghazy Mujahid, a former United Nations population policy adviser, serves on the Board of the Ontario Society of Senior Citizens’ Organisations and is a research associate at York University's Centre for Asian Research. The Hill Times

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Biden should push to limit presidential pardon powers

The dangers of letting the power rest in the hands of the president alone have become evident.

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