The Nadler Amendment

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Glenn Greenwald: My guest today is Congressman Jerry Nadler, the Democrat from New York....

Jerrold Nadler: I am drafting now a constitutional amendment... to limit the president's pardon power.

[A] president, number one can't pardon anybody except for a crime of they were already convicted.... The pardon is supposed to be tempered justice with mercy - get the justice first....

Number two, I would say you can't pardon anybody in your own administration, for anything connected with an action of that administration....

Number three, which I'm thinking of, but I'm not sure I want to do yet, is that no president can issue a pardon in the last six months of his administration.

It's a little odd that #1's needed, right? This has always bothered me about Ford's pardon of Nixon -- we should have convicted him first! This shouldn't require a constitutional amendment. This should just require somebody challenging a preemptive pardon, and the Supreme Court saying, "yeah, that's nonsense." Article II, Section 2, if you've forgotten, reads

The President shall... have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Backing a constitutional amendment here is an admission of a process failure. I always think it's harder yet better to fix the process itself. The judicial branch should be asked to clarify that blanket pardons are part of our country's more innocent youth. Not that I'm anti-amendment -- it'd be exciting to have one! The age of majority was set when I was three, and the only other one to pass in my lifetime I didn't even remember.Seriously, what's the 27th Amendment to the United States? Oh, yeah? So, smart guy, when was it proposed (Hint: the anniversary is in one week. The 219th)?

Number Two... well, I'm not convinced. The thing is, that 'the administration' is so broad. Without some effort to reduce the number of political appointees -- In 2005, it was 2786 -- you're creating a pretty large class of unpardonable people.

Say I'm a presidential appointee, and I become aware through my position that we're going to gas a village in some country we're occupying. Yes, I know we're totally incapable of committing war crimes, but hear me out. I call the foreigners and tell them to evacuate the village before we kill everyone. I've committed treason in time of war, and it'd probably be pretty hard to hide and I would obviously be guilty. I would then be sentenced to death. It'd be nice to know the president could pardon me.

Number Three... So, Dubya is having a tough last six months. He doesn't seem to get heard a lot. If he'd pardoned a large group of malefactors on July 21st, would we think any less of him?

The point here is that Representative Nadler, bless his heart, is trying to tie the hands of overtly criminal presidential administrations. But, the pardon power is potent and necessary. I like the pardon power. I would really, really rather the focus was on strengthening, or rather reforming, the organs of impeachment, so that if we have another overtly criminal presidency we can deal with it appropriately. And I prefer 'reforming' to 'strengthening' because Bill Clinton should not have been impeached -- his crimes and misdemeanors simply weren't high.