The Due Process Bona Fides of Executive Self-Pardons and Blanket Pardons

By Bayer, Peter Brandon | Faulkner Law Review, Fall 2017 | Go to article overview

The Due Process Bona Fides of Executive Self-Pardons and Blanket Pardons


Bayer, Peter Brandon, Faulkner Law Review


I.   INTRODUCTION II.  THE MEANING OF DUE PROCESS OF LAW      A. Due Process is the "Value Monism" of the Constitution      B. The Legal Meaning of Due Process of Law         1. The Due Process Clauses prohibit governmental            conduct that is either "arbitrary or capricious"         2. Governmental action is arbitrary or capricious if it is            immoral, that is, lacking fundamental fairness         3. The meaning of moral bearing--of comporting with            fundamental fairness--has been best expressed by the            Enlightenment philosopher Immanuel Kant         4. Discerning rights under the Due Process Clauses is an            exercise in deontological moral reasoning III. THE NATURE OF THE CLEMENCY AUTHORITY UNDER THE      UNITED STATES CONSTITUTION      A. Clemency and Pardons in General      B. English Antecedents to Modern American Clemency      C. The American Model      D. The Due Process Meaning of Clemency         1. Clemency and suspicion of unfettered executive            authority         2. Article II, Section 2, and exercises of official state            clemency are constrained by the structures of the Due            Process Clauses            i. All policies supporting a clemency system except               promoting justice are irrelevant to any act of               clemency's due process legitimacy           ii. The dominance of the judiciary as a check on the               executive's clemency prerogative          iii. Precedent addressing due process and clemency IV.  THE DUE PROCESS BONA FIDES OF EXECUTIVE SELF-PARDONS      AND BLANKET PARDONS      A. Because They Inherently Involve Self-Dealings and         Self-Promotion, Self-Pardons Likely Violate the Due Process         Clauses of the Constitution      B. Self-Pardons as Acts of Justice      C. Amnesty, Blanket Pardons, and Due Process V. CONCLUSION 

I. INTRODUCTION

Open virtually any newspaper, news magazine or periodical, or listen to any news broadcast or news commentary program, and you likely will see or hear abundant reports and commentaries regarding something at once most remarkable and even more so, worrisome, indeed nerve-racking to those who respect the Constitution and its rule of law. The relevant matter concerns the sitting President of the United States and applicable constitutional law regarding that executive officer's singular, unilateral authority to pardon or otherwise dispense clemency-that is, to mitigate the punishment of convicted felons and, indeed, to pardon preemptively both individuals and classes of persons as the President sees fit.

As part of the structure of American government arising from both a specific provision of the United States Constitution and centuries-old tradition, the office of chief executives--at the federal level, the President, and at the state level, governors-includes the authority to grant various forms of clemency to convicted felons. Clemency ranges from lessening the duration or conditions of sentences to full pardons that completely rescind any remaining punishment and essentially nullify the criminal conviction itself. (1) The theories of executive clemency in general and pardons in particular are much in the news because of various congressional and Department of Justice investigations concerning possible criminal and civil offenses involving both Donald Trump, arguably America's least qualified yet most arrogant President, and members of his equally inexperienced and maladroit inner circle of advisors including his namesake eldest son and his son-in-law. (2) Even as these words are being written, FBI special counsel Robert Mueller's thoroughgoing investigation has led to the arrest and plea agreement of members of the Trump campaign and administration, one of whom, retired Lt. Gen. Michael Flynn, formerly a respected member of the military, acted as a particularly ardent and effective campaign advisors of then-candidate Trump, and served thereafter, for a short but lively period, as President Trump's National Security Advisor. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Due Process Bona Fides of Executive Self-Pardons and Blanket Pardons
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.