In the United States, the power to pardon is an executive power that is awarded to the President of the United States under Article II, Section II of the United States Constitution. Typically, a criminal who has been convicted under federal law will apply for a pardon from the president and will either have their pardon granted or denied. However, the president also reserves the right to issue any pardons which he or she sees fit, regardless of whether the convict has applied to be pardoned. The notion that a U.S. President has the power to pardon anyone he or she pleases becomes especially formidable when we consider the havoc such a power could wreak on American democracy if the President was legally allowed to pardon him or herself from convictions under federal law.
The possibility of such a threat to our democracy is entirely real. This results from the fact that pardoning power is described in an extremely vague manner in the U.S. Constitution. In fact, Supreme Court Justice, Ruth Bader Ginsburg highlighted it explicitly as a section of the Constitution that is at risk of exploitation due to the fact that it does not specifically answer questions such as, can a President pardon him or herself? Ginsberg states that, “more specificity on these sorts of points will be critical in determining whether democracy survives”. The discussion of the presidential right to pardon oneself from legal allegations has been under intense scrutiny following a claim by Donald Trump stating that such a power was an “absolute right”, in his response to the ongoing investigation by Robert Mueller regarding the Russian involvement in the election of 2016.
If a President possessed the legal ability to pardon him or herself, this would be cataclysmic for American Democracy. One could identify this said power as a mechanism for “stealth” Authoritarianism due to the fact that in pardoning oneself the President would be depending on pre-existing legal mechanisms to undermine the separation between abuses of power that could warrant impeachment, and legitimate protection of such actions awarded to him or her by the Constitution. A precedent that protected such an abuse of power would almost certainly create pathways for Constitutional Retrogression. Such a precedent would threaten an imbalance of powers between the branches of American government favoring the Executive Branch. This could result in permanent damage to the institutional checks; a framework which the functioning of the government relies on. Additionally, such a power would inherently undermine bureaucratic autonomy in the United States due to the fact that agencies such as the Federal Bureau of Investigation would have no authority or jurisdiction incentivizing the President to behave fairly and honestly.
In the event that there was a legitimate attempt by a U.S. President to exploit the pardoning power for their own benefit, it would be up to the United States Supreme Court to interpret the constitutionality of such an action and to set an appropriate precedent which would protect the future of the United States democracy. Failure to protect our democracy from Authoritarian exploitations could lead to a total erosion of Democratic governance in America paving the way for an Authoritarian regime to step in and restrict the rights of the people and the government which we recognize as sacred freedoms in the United States.
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