The Abuse of the Pardon Power Prevention Act Would Criminalize Politics

Abstract

At bottom, this statute would effect a radical change in how the presidency is understood. Historically, the President has been viewed as an independent political actor, with democratic bona fides, who was charged with making discretionary policy judgments. Now, he would be transformed into a slow-moving, process-bound, “nonpartisan” actor. Some readers may praise this change. But we do not think such a change is in the public interest. Of course, the public interest is always contestable because no one has the institutional knowledge or widely accepted power to declare a monopoly on what is in the common good. The President should be able to make important decisions with vigor, independence, and dispatch. This proposed bill would alter the presidency such that he would now second-guess his official actions for fear of prosecution. Federal prosecutors should not be authorized to dictate what is in the public interest. Many people who read this bill may not realize its likely consequences. Others can foresee these consequences, and approve of them, because they seek to transform the presidency. All should recognize that the consequences of this bill, if enacted, will extend far beyond President Trump, or even a President Biden. The presidency has far less to fear from this bill than the 535 members of Congress would. Indeed, our concerns apply more forcefully to Congress, which does not control the apparatus of federal prosecution. In December 2019, we wrote: Consider a third hypothetical in which personal and public motivations are inextricably intertwined. Two members of Congress are engaged in negotiations about a bill. Each agrees to support the bill only after it is amended to provide $1 billion in additional spending in their respective districts. They each have mixed motives. First, they believe that the extra $1 billion will help improve the welfare of their districts—which is part of the public good, as they conceive it. Second, they understand that bringing home the bacon will help their reelection campaigns. “All politics is local,” the old adage goes. The run-of-the-mill horse-trading described in this example might be bad policy and, arguably, is a misuse of discretion. But whatever else it is, it is not bribery. If we’re wrong, almost every member of Congress could be indicted under the federal bribery statute. Indeed, if every such deal or compromise is a presumptive crime, then the Department of Justice will have the power to investigate every set of political compromises that accrue on nearly all major spending bills. Such a theory of bribery would allow the department to investigate, and later indict and seek to convict, members of Congress involved in political compromise and log-rolling. We should resist efforts to criminalize politics. This bill may seem like a prudent idea in the current moment. But the bill criminalizes normal politics; it will end with criminalizing political speech. Do critics of the current President really want to give Attorney General Bill Barr the power to prosecute congressional log-rolling? Be careful what you wish for.