Author:Bayer, Peter Brandon
Position:Symposium on Executive Power
  1. 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.

    As this article will underscore, settled law holds that the Constitution's Due Process Clauses contained in its Fifth (3) and Fourteenth Amendments (4) cover and constrain the entirety of American government at all levels, regarding all official conduct performed by all offices--even including executive clemency authority, which is a realm that otherwise accords the President and appropriate state officers, often governors, essentially unfettered discretion. Plausible speculation informs that, as President, Trump is considering whether to issue a series of postconviction and preemptive pardons to both himself and to those under investigation for alleged illegal interactions, (5) some of which are often hastily and perhaps improperly denoted as "collusion," with Russian officials during the Trump campaign, transition, and the beginning of his administration. The serious prospect of blanket or mass pardons for his political associates makes the issue of due process constraints on the Executive's clemency discretion of utmost urgency. The specter of Trump attempting to nullify criminal convictions and other upshots stemming from bona fide investigations against him and his associates, plus resulting judicial challenges, articles of impeachment, and other conceivable governmental responses to such acts of claimed clemency, loom large indeed as constitutional concerns, perhaps constitutional crises. (6)

    Accordingly, the link between due process of law and executive clemency, with particular emphasis on arguably politically motivated self and blanket pardons, is the subject of this article. While any American President's realm of discretion to pardon and otherwise grant forms of clemency is both enormous and from a practical sense often unreviewable, the judiciary rightly has discerned that, for the sake of preserving the liberty vouchsafed by the Constitution, the Executive's pardoning power has constitutional limits. Consistent with the separation of powers doctrine, those limits may be determined as a matter of politics by Congress should it decide to impeach a sitting President for perceived misuse of executive clemency authority. Even more fundamentally, however, especially given the unlikelihood of presidential impeachment, the constitutional limits of executive clemency may be discerned and enforced through judicial review particularly addressing the Due Process Clauses.

    Contrary to much commentary and possibly some seemingly settled law, this essay argues that an American President (or a similarly situated state officer or office) may issue individual and "blanket"--or mass--clemency benefitting classes of named or unnamed individuals, and in addition may pardon himself, but only if doing so comports with the principles of fundamental fairness that define due process of law under the Constitution's Fifth and Fourteenth Amendments. Accordingly, the Constitution permits acts of clemency to foster mercy, compassion, and forgiveness, or to promote the purported best interests of the nation, or even to further an executive's political advantages, unless such clemency is arbitrary, capricious, or otherwise contrary to justice and liberty, and thus unconstitutionally unfair.

    Specifically, this article proceeds as follows: Part II presents the meaning of due process of law, accenting that, pursuant to the Due Process Clauses, all actions of whatever kind taken by any office or agent of government must be moral; meaning that official conduct may not be arbitrary, capricious or otherwise violate recognized tenets of fundamental fairness. Although not so acknowledging, the Supreme Court's definition of fundamental fairness is based on concepts of human dignity espoused by the Enlightenment moral philosopher Immanuel Kant. This article's understanding of constitutional law is controversial but based on the author's long-standing research that confirms "due process of law's" inextricable link to principles of immutable, a political morality discerned through impartial reason and applicable regardless of what outcomes may occur.

    Part III briefly sets forth relevant constitutional aspects of executive clemency, including the legal requirement that acts of clemency comport with the strictures of due process of law. Part IV then explains why governmental chief executives including the President may self-pardon, issue blanket pardons, or do both so long as those actions and similar grants of clemency comply with applicable due process standards. As is traditional, this writing ends with a brief conclusion, herein Part V.


    This article begins with a very brief discussion of the true meaning of due process of law under the Constitution's Fifth and Fourteenth Amendments. While strictly only the Fifth Amendment is applicable to presidential pardons, as it controls the actions of federal level actors of which the President arguably is the single most important, (7) the Supreme Court rightly has determined that the meaning of due process is identical for both amendments. (8) Accordingly, whatever due process constraints apply to acts of presidential clemency likewise apply to those of state governors or such other offices as particular states have authorized to consider matters of clemency.

    I have extrapolated the meaning of due process of law in considerable detail in an earlier work. (9) Moreover, what I consider to be my most comprehensive explication of American due process morality and law, the forthcoming article Deontological Originalism: Moral Truth, Liberty, and, Constitutional "Due Process," has been accepted for publication. (10) For a thoroughgoing explication of the complex meaning of due process of law, I would be flattered if the reader consulted those publications. For the purposes of this writing, I present a shortened but essentially usable synopsis.

    1. Due Process is the "Value Monism" of the Constitution

      As an opening point, this writing agrees with philosophers who argue that within any conceptual system, especially those sounding in or predicated on moral theory:

      [T]here must be some source of harmony; that is, all separate... norms [and standards] must...

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