The President’s Pardon Power Is Excluded By Conflict Of Interest
Contrary to widespread belief, the president’s pardon power is clearly not unlimited. In fact, it is explicitly excluded in cases of impeachment (Article II, Section 2 of the Constitution). Just as importantly, the Constitution does not specify that the pardon power is unlimited. A logical interpretation of the Constitution leads to understanding that the pardon power is excluded in cases where a pardon would be immoral or unjustified. A particular pardon would also be excluded when vitiated by a conflict of interest, whereby the president would benefit from it either personally or indirectly (benefiting family members, friends, and associates). The intent of the Constitution is clearly to not allow the president to engage in immoral and corrupt acts. For example, it specifically proscribes personal enrichment through bribery and other ways of improper enrichment (v. emoluments) while in office.
Wherever the Constitution does not specifically address a particular situation, its provisions must be interpreted with rigorous logic and in a way consonant with the Constitution as a whole. Since the Constitution is infused with a spirit of the highest morality, its various provisions cannot be interpreted as deviating from such spirit.
It follows that all presidential pardons must conform to the highest moral principles. They can only be valid when morally defensible and when no conflicts of interest are present. For example, presidents may pardon convicted criminals (to whom they are not connected through friendship, family, or business) who have demonstrated sincere remorse and made very significant contributions to society. An improper, constitutionally invalid pardon was the one President Clinton made for Marc Rich, since it was connected to a large monetary contribution by Rich to Clinton’s foundation. That was a pardon clearly infected by conflict of interest. Not only should that illegal and immoral pardon have been revoked, but Congress should have punished Clinton for it. To remove any appearance of self-interest, each presidential pardon should specifically explain the rationale behind the pardon and pledge the total absence of conflict of interest. Even remote and tenuous conflicts of interest disqualify presidential pardons.
The Constitution’s clear intent is to not allow presidents to pardon themselves, their family members, their friends and associates. A presidential pardon is constitutional only when it is completely disinterested, not infected by conflicts of interest, and is infused with a high degree of morality. How can anyone logically interpret the Constitution as allowing corrupt or treasonous presidents to pardon themselves and their collaborators? How could the Constitution be logically interpreted to allow cynical presidents who obstruct justice to pardon themselves and their collaborators? That would make a mockery of the Constitution and of the nation itself.
Those who today insist that the president has an unlimited power to pardon are severely misguided. Many have a flawed understanding of the Constitution and of the law in general, not understanding that laws need to be logically interpreted. Others are cynical party tribalists defending one of their own regardless of morality and the interests of the nation, who would change their pardon standards regarding presidents of opposing parties. Nations dominated by cynical political parties prone to dishonest spinning are societies in moral decline and at great risk. Very sadly, that seems to be the case with the United States.
© Edward Sonnino 2020
February 18, 2020
