Tag Archives: Pardon power

Some Very Good Ideas

One of the (depressingly few) public servants I really admire is Adam Schiff, who comported himself with dignity during Trump’s four years of monkey-poo-throwing antics. Schiff is highly intelligent and measured–attributes too few Congresspersons these days seem to share.

For example, rather than focusing solely on accountability for Trump, Schiff is trying to change the flaws in the system that enabled Trump’s authoritarianism and grifting.

According to columnist Jennifer Rubin, Schiff is proposing a bill to address the longtime accretion of executive power at the expense of Congress.

“While Donald Trump is no longer president, the fault lines he exposed in the foundation of our democracy remain — ready for a future unethical president to exploit,” Schiff said in a statement. “These weaknesses continue to erode the American people’s trust in our democratic institutions and the norms that are essential to a functioning democracy.”

The bill is chock-full of very good ideas. For one thing, it addresses the absolute nature of the Presidential pardon power, requiring the Justice Department to “provide materials to Congress concerning any self-serving presidential pardon or commutation in cases involving the President or his/her relatives, contempt of Congress, or obstruction of Congress.” it also makes it clear that pardons are “things of value” for purposes of federal bribery statutes. And it explicitly prohibits self-pardons by the President.

The bill goes well beyond the pardon power, however. It would suspend the statute of limitations for crimes committed by a president in office. In a move I find particularly important,  it clarifies the reach of the Emoluments Clause would specifically allow Congress to enforce its provisions.

The bill also seeks to end the sort of stalling we saw in the last administration that paralyzed congressional investigations, codifying “a cause of action for Congress to enforce its subpoenas, including those issued to government officials.” The bill also “expedites the judicial process for congressional subpoena enforcement actions; empowers courts to levy fines on government officials who willfully fail to comply with congressional subpoenas; and specifies the manner in which subpoena recipients must comply.

In response to such unilateral action as a president withholding previously appropriated aid (in Trump’s case, to extort Ukraine to produce dirt on his political opponent), the bill strengthens the Impoundment Control Act and beefs up disclosure requirements. Efforts to politicize the Justice Department would be limited by a requirement to keep a log of contacts with the White House and a reporting obligation for the inspector general.

Rubin points out that the bill has provisions that address nearly every Trump offense:  it requires both the president and vice president to disclose the last ten years of their tax returns, and  requires presidential campaigns to disclose foreign contacts. Other provisions protect inspectors general and whistleblowers, and increase penalties for Hatch Act violations.

I can only hope this bill passes. The odds of such passage would seem to be much greater with a Democrat in the White House–the spineless Congressional Republicans who enabled Trump would be likely to balk if a Republican was President, but will arguably be happy to vote for constraints that–at least initially–will apply to a member of the other party.

What is particularly positive about Schiff’s proposal isn’t just the obvious merit of the various provisions. It’s the recognition that the danger posed by Trump’s Presidency weren’t all attributable to his personal inadequacies and corruption. The lack of  sufficiently specific legal constraints made it much simpler for him to act in ways that enriched him and his family. Trump, fortunately, was incompetent. If a smoother, smarter version were to come along, that person could do inestimable harm.

Schiff understands the importance of legal clarity and enforceability. In a very real sense, his bill proposes to amend  James Carville’s famous admonition to read: “it’s the system, stupid!”