Monday, October 30, 2017

Too Stupid to Understand

The President...shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. --Article II, Section 2
Any non-lawyer like myself could read the above sentence from the U.S. Constitution and conclude that the President has an absolute ("plenary") power to grant pardons "except in cases of impeachment". (Hence your humble blogger made a somewhat fanciful post nearly three months ago that President Trump could preemptively pardon everyone who could be interviewed by Special Counsel Mueller, thereby de-fanging the whole investigation without firing Mr. Mueller.)

Baker, Hostetler attorneys Lee Casey and David Rivkin support such sweeping use of the pardon power: [bold added]
Mr. Trump can end this madness by immediately issuing a blanket presidential pardon to anyone involved in supposed collusion with Russia or Russians during the 2016 presidential campaign, to anyone involved with Russian acquisition of an American uranium company during the Obama administration, and to anyone for any offense that has been investigated by Mr. Mueller’s office.
Not everyone accepts this interpretation. Democratic Representative Adam Schiff:
The president cannot pardon people if it's an effort to obstruct justice, if it's an effort to prevent Bob Mueller and others from learning about the President's own conduct. So, there are limitations.
Tennessee law professor Glenn Reynolds proposes indirect constraints through transparency and disclosure:
Archiving: A requirement that presidential pardons be recorded with the National Archive....

Explanation: Congress might require that pardons include a short and clear explanation of the reason for the pardon....

Accounting: The Archivist might maintain an index of pardons by crimes and circumstances.
Like the priests of old, lawyers and judges are required as interpreters of Holy writ because we're too stupid to understand that the words on the page don't mean what they say.

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