Suggested Amendment
Either House of Congress may void any presidential pardon with a majority vote. Any member of either house may initiate a voiding petition and may require a public vote within 20 congressional working days. Once voided, Congress shall not reinstate the voided pardon. The president shall not pardon anyone within their administration and shall not pardon anyone with whom there may be a conflict of interest. The power of presidential pardon is limited to affairs of the United States federal government.
Discussion
Regardless of your point of view of Donald Trump, he has repeatedly thrown out warnings and promises of presidential pardons. He has been sufficiently concerned to make the public statement that he has the right to pardon himself. 1
From the Constitution
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
New York Times
A strict reading of just the last phrase indicates that there are no further limits on the prerogative of presidential pardons. Indeed, the New York Times, the day before President Nixon resigned, wrote:
The exception means that he cannot restore the standing of a Federal officer who has been impeached and removed from his position; it does not mean that a President cannot pardon himself before his own impeachment.
Discussion
At this point, the arguments as to the limits of presidential pardon can, and do, branch off in many directions. There are those on both sides of the question, yes he can versus no he cannot, that are certain their position is correct.
Regardless of your position, the following is clear. The presidential pardon has no checks and balances. Now that D. Trump has made a significant issue of this, it is time to install a check on the presidential pardon.
Single Person Bottleneck
It is the case that in both houses of Congress a single person can block legislation and prevent a vote on a given bill. Congressional committees are fully capable of blocking any bill regardless of the desire of the majority of their house. The wording of this amendment suggestion provides the ability of any member of congress to require a full and public vote.
There may be a few of the more senior members of Congress that cry out because this reduces some of their power and authority. Yes, it does, and that is quite intentional. The response to that whining is to consider how often presidential pardons are granted therefore how little time will actually be devoted to these considerations. Most pardons are not controversial. But when we get to someone like Trump, they may well be. And Congress needs this prerogative. And while Trump is in office, they need it right now.
Recognizing that the personal perspective of each reader significantly affects the interpretation, the multiple comments and tweets from Trump indicate that he considers the promise of a pardon as a reward for past and present service towards himself. This is fundamentally in contradiction with what is called The Rule of Law. 2
Rule of Law
From the Constitution, Article 6
Rule of Law
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Discussion
This passage means that no person or institution is above the law and that all persons, institutions, and entities are subject to the constitution.
Checks and Balances
The constitution was intentionally written with the intent of separation of powers. The explicit goal was to prevent too much power from being vested in a single branch of government. For that reason it divides the government into three relatively independent branches. Each branch can and does serve as a balance to the other two.
Legislature
The houses of Congress make the laws, but they are subject to, first the Constitution, and second to the laws they have created. They may create no laws that are in contradiction with the Constitution.
Executive
The executive branch carries out the laws and enforces them, but they are subject, first, to the Constitution, and secondly, to the laws made by Congress.
Judicial
The Judicial branch neither makes laws nor enforces them. It interprets the laws and makes two types of determinations. First, is the law constitutional? Is it legal according to the Constitution? If not, the Court can, and does, rule that the law is invalid and voided. Second, the court determines if the law is being followed correctly. That fact that the Courts do not make the law is check upon their power.
Discussion
When considering the three branches, none can act without restraint. All have guidelines and limitation within which they must operate. The power of the presidential pardon has no check and balance. The Constitution needs that now.
Abuse
I am tempted to include this sentence:
Congress may determine that an abuse of the presidential power of pardons is an impeachable offense.
However, I fear being unduly influenced by the extraordinarily bad behavior of Trump. Given the entirety
of this proposal, and if enacted, all violations would be in contradiction to the constitution that the
president swears to uphold and would therefore be an impeachable offence. Still, it seems that we might
need a clarification to a Congress that is reluctant to throw out a misbehaving president. Witness the
reluctance to impeach Nixon.
In my opinion, If Trump were a Democrat and if the Republicans had a 2/3 majority, they would have
impeached and convicted him before the first year had completed.
1.
CNBC 9 Experts write, 4 June 2018
From the article: President Donald Trump said on Monday that he had the "absolute right" to pardon
himself a view he said was shared by "numerous legal scholars."
From a Trump tweet, 4:35 AM Jun 4, 2018 As has been stated by numerous legal scholars, I have the
absolute right to PARDON myself, but why would I do that when I have done nothing wrong?