The power to pardon and the “no-funds” rider

Congress doesn’t have to take the Libby pardon lying down.

The White House is making it increasingly clear that Scooter Libby will be pardoned if he doesn’t manage to beat the rap on a technicality. After all, what’s a little bit of perjury and obstruction of justice, among friends?

Democrats, on the other hand, along with those Republicans still committed to the rule of law (all four of them), are exercising their outrage muscles in anticipation. They ought to do more.

So far, Congressional Democrats have shown they know how to use the power of investigation. Now it’s time to use the power of the purse, and in particular that Swiss Army Knife of legislation-in-opposition, the “no funds” rider on an appropriations bill: “No funds appropriated in this or any other bill shall be used for the purpose of …”

Nothing can be done without money. Even an action with no direct budgetary implications still requires someone to do something. So it’s a crime (a violation of the Anti-Deficiency Act) for any federal employee to perform an official task forbidden by a “no funds” rider. (There’s a specific provision that forbids anyone on the Federal payroll from “volunteering” his or her services, which is why non-emergency employees aren’t allowed to come to work in a funding shutdown such as the one Newt Gingrich engineered under Clinton.)

Now the Presidential power to pardon is in the Constitution, and is unfettered. So I don’t believe that the Congress could Constitutionally forbid the President from issuing a pardon. But Congress could in effect require that he write it out in his own handwriting, by forbidding any other federal employee to help him.

I had previously suggested that such a ban be placed on pardons for Presidential appointees and other “politicals”: members of the non-career Senior Executive Service and those hired under Schedule C. That still seems to me a sound principle. But if the goal is to denounce a Libby pardon in advance, there’s a much simpler approach. The Pardon Attorney’s office in the Justice Department has a set of guidelines, one of which provides that:

No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.

So all the Congress needs to do is write that published guideline into law: “No funds appropriated in this or any other bill shall be used to receive or process a petition for pardon, or to issue or prepare to issue a pardon, for any offense of which the person to be pardoned has been convicted within the previous five years.”

Would this ensure that Libby will serve the sentence Judge Walton finally imposes on him? No. Libby’s lawyers could write up a pardon proclamation and hand-carry it to Mr. Bush (his secretaries would be barred from so much as opening the envelope and handing the President the contents). But it would put the Congress firmly on record behind a sound policy already embodied in regulation. If the rider were attached to the appropriation for the Executive Office of the President, Mr. Bush wouldn’t have much choice but to sign, or to force a shutdown of his own office in defense of the principle that perjury isn’t actually a crime.

Update My friend the Super-Smart Criminal Appellate Lawyer disagrees. On Constitutional grounds, he doubts the Congress can use “no-funds” to take away one of the President’s explicitly-granted powers. On policy grounds, he thinks we need more clemency, not less, and regards the five-year rule as unreasonable, especially in cases of actual innocence.

Politically, I think there’s something to be said for making GWB stick to his own published guidelines. But I agree that the substantive rule ought to be “no Plum Book appointee.”

Constitutionally, my friend may be right as a matter of Supreme Court doctrine. But if the Constitution means what the Framers meant, then I doubt it. The Framers were Whigs. The whole history of Whiggery was using the power of the purse and the statute book to rein in the King’s use of what no one denied were his prerogative powers. In particular, by making it impossible for the king to act except through his ministers, refusing to vote taxes except on conditions (“grievances before supply”), and making the ministers criminally responsible for any bad use of the King’s undoubted powers, the Whigs slowly transformed the United Kingdom from a monarchy with some ill-defined legal limits and a Parliament whose only unshared power was voting taxes to a republic with a ceremonial hereditary head of state.

I wouldn’t have wanted to tell Madison, or even Hamilton, that under the document they’d written the Congress had less power to check the President than the Parliament had to check the British monarch.

The main point here, of course, is party-political. The Democrats want to go into 2008 chanting “No amnesty,” and they want to make the Republicans defend the principle of letting criminals get away with it if they’re well connected. In war and politics, take the high ground.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: