CAFE Insider Newsletter #25: Process matters; “no discretion may be legally unfettered”

CAFE Insider Newsletter #25: Process matters; “no discretion may be legally unfettered”

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Dear Reader,

President Trump’s record of politically-tinged pardons and reported intention to pardon members of the military who stand accused of war crimes have raised questions and concerns about unfettered discretion and fairness of the process.

The authority to pardon is uniquely broad and immune from Congressional interference. It is well established that pardon power is unlimited except in impeachment cases. It can be exercised at any time after a crime is committed, including before charges are filed. And it is not subject to legislative control.

The Constitution does not forbid favoritism or cronyism in pardon decisions. Maybe it should, but it does not. Short of clear evidence of a bribe, the president can pardon anyone –  his family, his friends, his associates. There is even an argument – though not a very good one – that he could preemptively pardon himself because the Constitution does not explicitly prohibit it.

When a power is sweeping and standards are squishy, it is difficult to impose rigor on a decision. How does a president exercise extremely broad grants of authority? How do we decide whether discretion has been abused if the power is unrestrained?

Notwithstanding the absolute constitutional authority to pardon, the U.S. government, all the way back in 1891, decided to formalize, streamline, and regularize the process in an effort to insulate presidential pardon decisions from criticism and to guard pardon decisions from political or personal influence.

The earlier practice of presidents relying on the Attorney General for advice and assistance in acts of clemency were codified through an act of Congress that transferred administrative aspects of the pardon power to the Justice Department, establishing the Office of the Pardon Attorney. The goal was to give everyone a fair shot at a pardon, not just the people with the necessary connections. And, no doubt, part of this transfer was for simple efficiency because identifying a worthy pardon, depending on the number of requests, could be like finding a needle in a haystack.

Over time, the Department of Justice has put forward all manner of guidelines and standards for making worthy recommendations to the President. In the modern day, the Office of the Pardon Attorney assesses applicants on their behavior following their conviction, the seriousness of the crime, and their willingness to accept responsibility for it. The pardon office writes a report that includes a recommendation and sends it to the Deputy Attorney General who adds his or her own recommendation before being delivered to the White House for review. The President need not accept the recommendations.

While the pardon power may be unique to the president and governors, the principle by which sweeping forgiveness is asserted is astoundingly common. It may sound odd, but every institution has to grapple with how to exercise a version of the pardon power. Presumably the CEO of a large company can forgive a favored or related subordinate even if the HR department, through an untarnished process, found a serious transgression. Similarly, a school principal can reach down to overrule a teacher’s decision to discipline a student.

Prosecutors also have a version of the pardon power. After charging an individual with some category of a low level felony, it is within a prosecutor’s discretion to reduce the charge to a misdemeanor or offer deferred prosecution when justice demands it. The discretion can be wide.

At SDNY, the power to bring a lesser charge could have been, as a matter of practice and tradition, vested in me as the U.S. Attorney to decide as I saw fit. Instead we had our analogue to the pardon attorney – an internal misdemeanor committee, made up of high level supervisors, who heard the entreaty of the defense lawyer, consulted with the prosecutors who brought the case, consulted the federal agency who had made the arrest, weighed the arguments made by similarly situated people, and voted on a recommendation to either continue with the felony or downgrade the charges.

It was a process, open and transparent and fixed. In every instance, the Chief of the Criminal Division or the U.S. Attorney had absolute authority to go against the recommendation. I never did. And there may have been times when overruling of impartial, independently constituted committee made sense. But there’s a steep cost in doing so and that cost has to be borne by any institution whose leader would execute authority outside of a well-defined process.

Process matters. Objective guidelines make way for uniform exercise of discretion. People demand some modicum of fair process notwithstanding the Constitutional carte blanche. Throughout history, even kings wielding unchallenged powers saw fit, from time to time, to set up processes for certain decisions.

Following process helps ensure that the ultimate decision to pardon is made on the merits, and isn’t the result of whim or vendetta or politics. Process protects the institution, potential beneficiaries, and the president himself.

The great late British jurist Lord Tom Bingham wrote this in his posthumously published book The Rule of Law:

The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.

Recent pardons have prompted a number of efforts to prevent abuse of the pardon power. The National Task Force on Rule of Law & Democracy that I co-chair with former NJ Governor Christine Todd Whitman calls on Congress to require justifications from the President for pardons involving close associates and to pass a resolution condemning self-pardons.

The pardon power is important and it can be a tool to advance justice. But the power is in want of some measure of accountability, and how we deliver accountability, whether through a Constitutional Amendment or by some other means, is a debate I predict we’ll be having and I hope we’ll be having in the lead up to the 2020 presidential election.

My best,

Preet

THE (OCCASIONAL) FUTILITY OF DEBATE

UNITED KINGDOM – OCTOBER 25: The British philosopher and mathematician Lord Bertrand RUSSEL. This scientist went deeply through the principles of mathematic reasonment and received the Nobel Litterature Prize in 1950. He was also a fervent activist of the non-spreading of the nuclear weapon. It was for this reason that he adressed the Sovietic leader Nikita KHRUSHCHEV to ask him to calm down the tensions that rose with the question of Cuba. (Photo by Keystone-France/Gamma-Keystone via Getty Images)

In our ever-fragmented society, it feels as if debates are lurking around every corner, ready to exhaust our time and energy. Now, more than ever, we may find ourselves being provoked by political conversations. To what extent should we avoid these confrontations? While public debate may be the lifeblood of democracy, always coming out guns blazing is not a sustainable approach.

Bertrand Russell, the essayist, logician, philosopher and social critic who was awarded the Nobel Prize for Literature in 1950 “in recognition of his varied and significant writings in which he champions humanitarian ideals and freedom of thought,” was acutely aware of the “futility of debate,” as the writer Maria Popova notes in blog Brain Pickings. Russell recognized that it is senseless to debate an individual whose views are so morally misaligned with one’s own that the price of engaging in such debate is one’s own sanity. In short, we have to pick our battles.

In a telling incident, Russell received a letter in 1962 from Sir Oswald Mosley, founder of the British Union of Fascists, who yearned to debate the merits of fascism with Russell. A staunch opponent of fascism, Russell declined to engage, deftly responding:

I feel obliged to say that the emotional universes we inhabit are so distinct, and in deepest ways opposed, that nothing fruitful or sincere could ever emerge from association between us…I should like you to understand the intensity of this conviction on my part. It is not out of any attempt to be rude that I say this but because of all that I value in human experience and human achievement.

Sometimes one merely needs to step away from a battle—admit that it’s not worth it—and invest one’s time in a more productive manner. And as Russell believed, if only to protect one’s sanity.

To read more of his work, check out this online collection of Russell’s books and articles. We recommend “The Future of Man” (The Atlantic, 1951) and “What Desires Are Politically Important?” (Nobel Prize Acceptance Speech, 1950).

What’s a topic not worth debating? Reply to this email, or write to us at letters@cafe.com

REVERSING ROE & POLITICIZING PARDONS

In episode 26 of the CAFE Insider podcast, Preet and Anne took a deep dive on the abortion debate in light of the recent wave of restrictive abortion laws aimed at challenging the U.S. Supreme Court’s decision in Roe v. Wade (1973).

In an effort to cut through all the media noise, we break down below the key legal and political elements of one of the most hotly debated topics in the country.

The current law on abortion:

In Roe v. Wade, the Supreme Court created a woman’s right to an abortion through an implied constitutional right to privacy protected by the Fourteenth Amendment. In Planned Parenthood v. Casey (1992), the Court’s majority reaffirmed the three main principles of Roe:

  1. Women have the right to abortion before a fetus is “viable” without undue interference from the state
  2. The state may restrict abortion post-viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health
  3. The state has a legitimate interest in protecting a woman’s health and the life of the fetus

The Court has defined “viable” as “potentially able to live outside the mother’s womb, albeit with artificial aid.” In Roe, the justices accepted that a fetus becomes viable at the start of the third trimester and then in Planned Parenthood, the Court allowed that a fetus might become viable before the third trimester due to new life-preserving technologies.

The Planned Parenthood decision broadened the states’ authority, allowing restrictions on abortion rights as long as they do not place an “undue burden” on the mother. The “undue burden” standard—opaque and subjective—deems state regulation unconstitutional if its purpose or effect is to place a “substantial obstacle” in the path of a woman seeking an abortion before the fetus becomes viable.

The new abortion laws:

The appointment of Justice Brett Kavanaugh to the Supreme Court in 2018 has led many red states to pass more abortion restrictions. Abortion-opposing legislatures hope to get their cases to the Supreme Court to test their luck at overturning Roe.

Earlier this month, Georgia Governor Brian Kemp signed the “Living Infants Fairness and Equality Act,” a prohibition on abortion after six weeks of pregnancy—with a longer time frame in cases of rape and incest—which is often before a woman knows she’s pregnant and when doctors can usually start detecting a fetal heartbeat.

Last week, Alabama signed the “Human Life Protection Act” into law, which is a near-total abortion ban that makes it a felony for a doctor to perform an abortion at any stage of pregnancy. Legislators carved out exceptions for lethal fetal anomalies and situations where there is grave risk to the mother’s life, but denied an amendment that would permit abortions in cases of rape and incest.

The standard for overturning precedent:

The legal doctrine of stare decisis obligates courts to follow previously decided cases when making a ruling on a similar case (i.e., precedent). The Court will occasionally decide not to apply the doctrine if a prior decision is deemed “unworkable.” Typically, the longer the precedent has been on the books, the greater the presumption that it shouldn’t be overturned.

Chief Justice John Roberts is an institutionalist and would be reluctant to fully overturn long-held precedent. The new abortion laws, which have yet to take effect, will likely be blocked by lower courts, which are required to follow the Supreme Court’s lead. States pushing for laws that all but ban abortions are likely to fail in lower courts, but if the Supreme Court takes up abortion, it may place more restrictions on a woman’s right to choose.

The politics of abortion:

From a political standpoint, laws that ban all abortions and criminalize doctors who perform them could hurt Republicans in the 2020 election. Cognizant of this risk, President Trump and other prominent Republican lawmakers have publicly announced more lenient positions on the issue, including their preference for abortion laws that permit exceptions.

If you haven’t already, listen to “Reversing Roe & Politicizing Pardons

*Please note, you may now manually add your unique Insider Podcast feed to your favorite podcast app. Here are the instructions.

THIS WEEK ON STAY TUNED

David Ignatius is this week’s guest on Stay Tuned. As a Pulitzer Prize-winning journalist and columnist for the Washington Post, Ignatius has covered foreign affairs, with a focus on the Middle East, for over twenty-five years. He is also the author of ten—soon to be eleven—novels.

 In this sneak peek at the interview, Ignatius identifies a quality that would help leaders avoid foreign policy blunders:

One thing I think that’s important—that Americans often aren’t very good at—is seeing the world through other people’s eyes. We see ourselves as exceptional…We don’t tend to think: “How does this seem to the other guy?”…
I think, at his best—forgive me for using that phrase—Donald Trump, does seem able to see things through other people’s eyes. I think when he’s in his flattery mode—“My dear friend Kim Jong-un, my dreams of the future development of North Korea,” talking like a real estate salesman—I think, in a weird way, in those moments he is trying to imagine what the world looks like to his counterpart.

Don’t forget to listen to this week’s episode. It drops this Thursday, May 23.

FOLLOW

Looking for inspiration? TED is a nonprofit organization that creates platforms for people to explore big ideas. You might recognize them as the creators of TED Talks: short video presentations that feature innovative and engaging thinkers on a wide range of topics. Follow @TEDTalks to learn something new—or revisit something old—from a new perspective.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at letters@cafe.com with your thoughts, suggestions, and questions.

— The CAFE Team

Tamara Sepper, Carla Pierini, Julia Doyle, Calvin Lord, and Vinay Basti

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