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Democracy++ [1]

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Date: 2025-01-26

Monday, in Democracy+, I suggested we enhance democracy. Strengthening democracy will undermine fascism and lead to a better future in the long run.

We started with a weak form of democracy when our country was formed, but we have strengthened it over the years. Even so, we still have a long way to go.

So I will be proposing changes to our laws that I believe will lead to a government that more closely executes the will of the people. Democracy is what makes our government legitimate. The closer we can get to a government that does what the people of our country want, the better our future will be.

Pardons Awry

A really big problem over the past few weeks has been the abuse of presidential clemency.

The enormous divisiveness in modern politics recently resulted in pardons and commutations by both President Biden* and Donald Trump intended to protect and enable their political supporters. The legitimate purpose of the presidential pardon is to enhance our system of justice by correcting injustices done by the federal criminal justice system. Not to protect yourself politically or reward your buddies.

The pardons by convict Trump are particularly troubling. He rewarded over 1,500 people who committed felonies to aid him politically. This seriously undermines the rule of law. (And he followed that up by firing inspectors general across the federal government, in case anyone mistakenly thought he accepts the rule of law in any small corner of the government.)

Solution

The clemency power is written into the Constitution, so any fix to this problem will require a constitutional amendment. This power comes from Article II, Section 2, Paragraph 1, which says the President:

…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

One important fix is to limit the scope of this power to explicitly exclude self-dealing. This can be done by expanding the limitation “except in Cases of Impeachment.”

But even if we exclude self-dealing (which includes self-pardons), there are still clear abuses we’ve seen in recent actions. For example, Criminal Trump pardoned anti-abortion activists:

Trump pardoned [Lauren] Handy and her nine co-defendants: Jonathan Darnel of Virginia; Jay Smith, John Hinshaw and William Goodman, all of New York; Joan Bell of New Jersey; Paulette Harlow and Jean Marshall, both of Massachusetts; Heather Idoni of Michigan; and Herb Geraghty of Pennsylvania.

[AP News]

These people are anti-abortion activists convicted of blockading abortion clinic entrances.

In the last Trump Administration, he also pardoned Steve Bannon, not for directly committing a crime to help him, but because Bannon was a crony.

The problem fixing crony and political pardons is that it is a matter of judgment when a pardon fits those categories. So, my suggestion is to make clemency subject to confirmation by the Senate.

This is not a full solution, however, because the Senate may be in the hands of the President’s party. But at least this means that any clemency granted will have to be signed off on by Senators, who will have to explain their votes to the voters. It makes it much more politically dicey to give out corrupt pardons.

On the whole, I suggest changing the clemency clause in the Constitution to something like the following:

[The President] shall have Power, with the Advice and Consent of the Senate, to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment or where the Crime was committed in furtherance of the Interests of the President.

(I don’t want to screw up the capitalization in the Constitution, but the format can be changed by whoever drafts this to suit the tastes of Congress.)

Enabling Legislation

This new clause will require interpretation, and I think the key interpretation falls to the Senate, since this clause gives them the power to confirm or deny clemency. So, I suggest this amendment be paired up with enabling legislation in the form of changes to the Senate rules.

The change I propose would be, for example:

On recommendation of the President, the Senate will review and vote to approve or deny consent for clemency within thirty days of receipt of such recommendation. A simple majority of Senators sworn and present shall be sufficient to approve all clemency votes. No consent may be approved for clemency of any person who committed their crime in furtherance of the interests of the President.

We should understand in passing the amendment and these rule changes that the implication of the third paragraph is to provide grounds for a Senator to raise the issue with the Supreme Court. This should make it explicit that every Senator would have standing to take this issue to the Court if they objected, which allows members of the minority party to block self-dealing.

The courts could separately block a pardon that violated the self-dealing clause if they got a criminal case for a defendant who the President tried to pardon in advance.

With those stipulations, I think this would prevent the kinds of pardons we’ve seen recently, which have the effect of undermining the rule of law. If someone is legitimately wrongly convicted, or has shown such redemption as to deserve commutation or pardon (but who didn’t break the law to help the President), the Senate would almost certainly confirm the President’s action.

Conclusion

We don’t have to put up with this level of corruption. The Constitution can be fixed so that Presidents don’t have the ability to misuse the pardon power. All it takes is a constitutional amendment.

Common thinking is that changing the Constitution is hard. We have to break through that kind of limiting belief. The Constitution has been amended numerous times. All it takes is a problem sufficiently serious and a real will to fix that problem.

This is a huge and serious problem. It is currently corrupting our government. It has corrupted the soul of the President (presuming you believe he has one). It’s in the process of corrupting the soul of the nation.

Even so, I don’t think this will have any traction in Congress until Democrats regain control. So, I expect this to be in the hopper in 2027.

Democrats should run on this and other democracy enhancing changes in future elections, until we have once and for all rid this country of the threat of fascism.

* President Biden’s pardons were a legitimate response to the threat of corrupt prosecution from the coming administration. But these would not have been necessary except for that corruption.

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