Our problems remain epistemological.

Tuesday, May 19, 2020

When Does the President “Abuse” the Pardon Power?

Seth Barrett Tillman, Lecturer
Maynooth University Department of Law
May 19, 2020

National Review Online: The Corner
Letter to the Editor

RE:    Andrew C. McCarthy, An Answer for Ramesh, National Review: The Corner (May 19, 2020, 11:51 AM), <https://www.nationalreview.com/corner/an-answer-for-ramesh/>.

Andrew McCarthy wrote:
If Senator Romney were to say, ‘A president cannot pardon all of his cronies who are suspected of crimes,’ he’d be wrong. If [Romney] were instead to say, ‘A president who pardons all such cronies grossly abuses his powers, and that Congress should block him until he desists and impeach him if he doesn’t,’ that’s a perfectly reasonable argument—and if the president suffers politically as a result, that’s what’s supposed to happen.
Who is or who isn’t a “crony” is the sort of contestable political view which is the subject of elections, not impeachments—that’s particularly true because our Constitution protects political association. The President abuses his pardon power when he exercises it in exchange for a boatload of cash, which he proceeds to hide in his closet, and then fails to disclose it to the public (and to the tax man). That’s a bribe. Short of that, his exercising the pardon power is just contestable politics. Too often, the issue of who is a “crony” and what is “abuse” are just political opinions and lawfare masked as statecraft. To make a President’s term of office wholly dependent on what his political opponents see as “abuse” is to render the President dependent on Congress—and that is not and has never been how our government was organized.

One other point. The Presidents opponents (and, regrettably, some others) consistently frame the issue in terms of whether the President can be impeached for anything but a statutory violation of the criminal code. Once they conclude that the President can be impeached for some wrongs which are not statutory violations, they then proceed to argue that any non-crime based on any difference of political opinion amounts to impeachable abuse of office or abuse of powers. The proponents of this view, i.e., that the President can be impeached for “abuse” of office or for “abuse” of his powers, never actually get around to explaining what “abuse” iswhat are its elementsand what defenses (if any) are applicable. See, e.g., Kelly v. United States, No. 18-1059, 2020 WL 2200833, 140 S. Ct. 1565 (May 7, 2020) (Kagan, J., for a unanimous court) (discussing abuse of power in dicta), <https://www.supremecourt.gov/opinions/19pdf/18-1059_e2p3.pdf>. 

The reality is that that “abuse” of office or “abuse” of powers, as it has been pitched to the public, amounts to an Orwellian thought crimewhich seeks to overturn an election based on wrong think and mundane disagreements about policy, which, in normal times, would be the subject of elections, not impeachments (and not a process of recasting political differences as accusations of legal wrongdoing, with concomitant investigations, and threats of prosecution). 


Seth Barrett Tillman, When Does the President “Abuse” the Pardon Power?New Reform Club (May 19, 2020, 12:36 PM), <https://reformclub.blogspot.com/2020/05/when-does-president-abuse-pardon-power.html>. 

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