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For instance, if I really hate littering, and I somehow become President of the United States, could I effectively make littering a capital offense by promising to immediately pardon anyone who kills a litterer?

Could I have my political enemies killed by promising to pardon their killers?

Are there any checks and balances on the pardon other than term limits and re-election?

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    While an interesting question, your premise doesn't address the consequences of violating state laws. The president only has the authority to pardon offences against the United States. – Drunk Cynic Jan 4 '17 at 14:30
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    Also, not really an answer to your question, but I strongly suspect anyone abusing this to a really big extent would likely risk impeachment – user4012 Jan 4 '17 at 15:31
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    @endolith - my understanding is that impeachment does not have to fit a specific legal code crime, but I could be wrong. – user4012 Jan 4 '17 at 18:40
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    @user4012 - Yes Lincoln did it for any confederate soldier that was willing to take an oath of alliegance after the civil war. jimmy carter granted an amnesty to all persons who had unlawfully evaded the military draft during the vietnam war. How ever you can not pardon for future actions so the pardon would have to take place after you commited the crime – SoylentGray Jan 4 '17 at 19:28
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    Isn't this basically what Rodrigo Duterte is doing in his anti-drug trafficking campaign in the Philippines? – Sidney Jan 4 '17 at 21:47
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For instance, if I really hate littering, and I somehow become President of the United States, could I effectively make littering a capital offense by promising to immediately pardon anyone who kills a litterer?

First this could be considered incitement as noted in this answer. Should something as explicit as this happen I would expect that swift action by congress to prevent this kind of corruption and sullying of the office. But, no, there is nothing beyond basic human decency and nearly assured repercussions to prevent it. The presumption is anyone who invests the time and money to rise to this position of power is not going to throw it all away on something like this.

Lets look at an example that is more plausible. A president has a serious bias against non Christian persons of color. That president does not explicitly promise to pardon those who commit crimes against this class of people, but starts issuing daily pardons for white Christians arrested the day prior for those crimes. There is nothing that would prevent such a thing again beyond the fact that it would destroy their career, and probably get them impeached.

Could I have my political enemies killed by promising the pardon their killers?

Yes. Now the rub here is that your assassins have no incentive to keep their mouths shut about their actions once they are pardoned. So it is really not a great incentive to commit the crime on its own. Further while the assassin and their accomplices may be pardoned, the president would still be on the hook for the crime. And the now pardoned assassins could be off the hook by simply telling their story and complying with the investigation. Impeding the investigation or lying about the crime is likely to be the only thing that would trip them up.

If this were to come out I would expect not only that they would be impeached but that they would be arrested immediately pending criminal prosecution. While the pardon would likely be upheld it is not going to prevent the federal government from making the attempt to have the pardon annulled.

It is possible as soon as the conspiracy is revealed that the president could be arrested as well and prevented from issuing a pardon. While that detention and prevention may be later found to be illegal, it will not afford the now impeached and incarcerated former president to be able to issue those pardons retroactively.

Are there any checks and balances on the pardon other than term limits and re-election?

Yes abuse of the pardon could result in impeachment. Beyond that it has been affirmed multiple times that it is the authority of the president to issue pardons without the advice and consent of either the Supreme Court, or Congress.

  • Plus, if it's traced back to the president before the conviction, the president might be impeached before the conviction (and therefore before the pardon) is issued. (This may also be what you're implying, but it isn't clearly stated anywhere.) – jpmc26 Jan 4 '17 at 20:40
  • @jpmc26 - The president can pardon at anytime after the offense has been committed. So they would not need to wait for the conviction. – SoylentGray Jan 4 '17 at 21:05
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    One item that is missing from this answer - almost all crimes are prosecuted at the state level, including murder. Sometimes there are crimes that fall into federal jurisdiction, or both. Presidential pardon power pertains to forgiving crimes as recognized under federal statute, so promising to pardon someone for murdering a litterbug would not stop state and local criminal justice processes from moving forward and punishing an offender. – PoloHoleSet Feb 10 '17 at 18:16
  • This seems pretty speculative, and needs more citations. – PyRulez Mar 1 at 1:14
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The House of Representatives can only impeach the President for "treason, bribery, or other high crimes and misdemeanors." If the House wanted to (and they almost certainly would), they would probably impeach you as either an accessory to the crimes being committed, or even just for inciting the crimes (which is a crime). After all, whether or not a convict is eventually pardoned, he still committed a crime after effectively being told to do so by the President.

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    The House of Representatives has the power to impeach the President for any reason they see fit, and the Senate has the power to remove any President thus impeached, if enough members of each body favor such action. Nothing in the Constitution specifies any particular standard of proof that must be met, so if enough members of each body said they believed the President did something, no matter how ridiculous the evidence might be, there would be no basis for any court to overturn that judgment. Note that Congress might reasonably apply a lower standard of proof... – supercat Jan 4 '17 at 23:15
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    ...than would be applicable in a criminal case, since people are assigned the office of President for the benefit of the country, not the benefit of the people serving the position, and as such removal from office might not be viewed as a "punishment" akin to those meted out by criminal courts. – supercat Jan 4 '17 at 23:19
  • @supercat Officially, the House has to impeach in response to a crime, though impeachment is separate from prosecution for the crime itself and can be completed without the person actually being convicted. The rest of your comment is correct, but there are so many questions on this site (especially lately) that have to do with impeachment that it's pointless to explain the whole procedure on each one if they aren't specifically asking about it. – IllusiveBrian Jan 5 '17 at 2:06
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    If the House and Senate vote to impeach and remove the President, the President's term of office will be over no matter how baseless the action. If they vote against impeachment and/or removal, the President may continue in office no matter how severe the crime or how strong the evidence. The Constitution offers guidance about when the House and Senate should remove the President, but grants them ultimate authority to make the decision on whatever basis they see fit. – supercat Jan 5 '17 at 15:48
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    @IllusiveBrian That's incorrect. They can impeach in response to "high crimes and misdemeanors", which is not the same thing as "crimes". Just because the word is in there doesn't mean it has the same legal meaning. In fact, nothing in the constitution even defines what is meant by "high crimes and misdemeanors". You have to trace back the history of the term, which comes from (pre-)colonial British law, and effectively means "anything contrary to standard governance". An extremely broad standard, to say the least. – zibadawa timmy Jun 4 '17 at 23:41
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U.S. Constitution, Article II, Section 2, Clause 1:

The President [...] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. [emphasis added]

Murder is (usually) a state crime. Not a federal crime. In other words, the crime of murder is enforced by the government of the state with jurisdiction. Murder prosecutions are generally not pursued by the federal government. In most states, governors have the authority to commute the sentence of convicted felons. But the President of the United States does not have that power as it relates to the states. The president can only "grant Reprieves and Pardons for Offences against the United States" — which does not usually include murder.

Therefore, the specific answers to your questions are as follows:

could I effectively make littering a capital offense by promising to immediately pardon anyone who kills a litterer?

No.

Could I have my political enemies killed by promising to pardon their killers?

No.

Are there any checks and balances on the pardon other than term limits and re-election?

Yes.

  • fyi: you don't need to delete duplicate questions. They improve site's searchability via Google. – user4012 Jan 30 '17 at 21:25
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    "Murder is a state crime" This is wrong. It is usually a state crime, but can be a federal crime, too, for example the murder of federal official, or murders that are related to federal crimes, such as bank robbery or drug crime. – sleske Aug 31 '17 at 7:45
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    @sleske - but there is no example of any kind of murder that would be exclusively a federal crime, and could not be prosecuted by the state where it happened. – PoloHoleSet Nov 27 '17 at 16:48
  • @PoloHoleSet: Murders within the District of Columbia are exclusively federal crimes, and cannot be prosecuted by any state (there is no "state where it happened"). – Kevin Aug 20 at 21:35
  • You answered "yes" to the final question, but didn't explain further. Are you talking about impeachment? Or some other check against abusive pardons? – BradC Aug 21 at 16:10
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Yes, and it's happened before

JFK pardoned basically the whole cohort of people convicted under the Narcotics Act of 1956, basically nullifying and overturning the law passed by Congress.

In the era following the 1950s, the pardon power evolved into a broader interpretation, eventually becoming a political tool. If a president feels that Congress has passed overly harsh penalties for breaking a law, he can use the pardon power to thwart the law. The best example of this is President John F. Kennedy's pardoning of those who were convicted of crimes under the Narcotics Act of 1956. Under this law, Congress passed harsh mandatory minimum sentences for drug offenses. As a result, a large number of first-time offenders found themselves in prison for five or more years. Kennedy pardoned these people, in effect overturning much of the law passed by Congress. Using the blanket pardon as Kennedy did allowed hundreds, if not thousands, to be released from prison. But all of these people were pardoned for the same offense.

JFK in effect nullified the law

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    the law was still in effect, except that he nullified its application to those individuals. other people could have been prosecuted under the same law during his time, or presidents after him could have executed the same law. – dannyf Jan 22 '17 at 14:35
  • selective enforcement of laws is not new. prosecutors at all levels do that, AGs do that. Most famously Holder stated to other AGs that they didn't have to execute laws if they disagree with it. The federal government doesn't execute many laws on paper, for example. – dannyf Jan 22 '17 at 14:37
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No. Or at least, not in any kind of comprehensive fashion. The main obstacle is that a presidential pardon has jurisdiction over FEDERAL crimes.

So any ability to nullify laws a president doesn't care for would have to be limited to federal offenses.

Killing a litterbug, to cite your example, would be prosecuted at a state level, so a president could not prevent that person from being punished for that crime.

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The president could try this, but anything as blatant as the examples you made would fail to be effective, for many reasons. Lets list out the big ones.

  1. The president would be removed from office.

This has already been mentioned, so I won't waste too much on it. Congress effectively has the power to remove the president from office for any action they consider sufficiently inappropriate, so long as they can get enough members of the house/senate to agree that what the president did is wrong.

Impeaching a president isn't too hard, since it only requires a majority in the house of representatives, but impeaching is only the first half of the process (basically declaring a trial should be held). However after being impeached to actually remove a president you need 2-3 of the senate to agree. This is very hard to get, in fact it has never happened, though it may have for Nixon if he hadn't resigned first. Since usually you have close to a 50/50 divide between the two major political parties, and generally whatever political party the president is part of will defend him, you will struggle to get much more then 50% of the senate to agree to removal, making 2/3 majority difficult to accomplish. However, if the president is so blatant as to call for murder of someone he doesn't like or anything else so overtly corrupt it's likely even his own political party won't stand by him and we would get our first official removal from office.

  1. The pardoned individuals will still face trial in state courts

Littering and murder are both crimes in both state and federal courts, but the president only has the power to pardon people of federal crimes. This means that the individual in question are still guilty, and capable of being punished by, the state. This is true for most other crimes you could imagine the president pardoning people for, usually there will also be a law against it on the state level allowing the state to also prosecute the pardoned individual.

In general a presidential pardon will also prevent states from trying the individual because the states are willing to respect the president's pardon, but this policy is not legally required by any laws or the constitution. The state usually, voluntarily, waves it's right to try someone pardoned as part of a general policy that the states and federal governments have to respect each others rulings in difference to double jeopardy; but the state could chose to go against that policy and try someone if they think then pardon was not serving the interest of justice.

To get a little more into the legal weeds to explain why this policy happens you first need to understand that officially, and legally, the constitutional protection against double jeopardy does not protect an individual nearly as well as you may believe. It protects an individual from being tried for the same crime in the same jurisdiction only. In theory a person could be tried by different jurisdictions, such as the state and the federal government. In fact someone could, in theory, be tried for the same crime as many as 7 times

Of course this doesn't feel very just to the average person, and the government agrees. For this reason there has been a standard policy of only allowing a person to be tried once for a crime. If a state tries someone from a crime the federal government wont try him for the same crime, and vice-versa. Nothing legally prevents both parties from doing so, assuming both parties have laws on the books making a crime illegal, but it's generally agreed that in the interest of justice this shouldn't happen. This is a very important policy to both parties, it's held so important that it's only violated in very rare and extreme instances. An example of one of those violations would be during the civil rights movements if someone clearly guilty of a crime was found 'innocent' by a racist state jury the government might also try them because they didn't feel the state racist jury was acting in the interest of justice.

This is relevant because it explains why states usually don't prosecute someone pardoned by the president. It ties very closely with the common agreement not to try someone for the same crime in two jurisdictions, the state treat a presidential pardon similarly to being tried and found innocent and feel that respect for avoiding double jeopardy means they shouldn't try the person in state crimes...usually. Nothing forces this policy, and if the president clearly acted in a blatantly selfish or unjust manner when pardoning the individual of federal crimes the state will likely step in and try the person for the state crime because they feel the federal pardon wasn't in the interest of justice, just as federal government stepped in when people were released due to racism.

  1. The person will likely be tried on the federal level if the state doesn't step in

I'm working on the presumption that the president would be removed from office if he did anything like encourage a murder by offering to pardon someone. As I already said the most likely outcome is the state would try the person, but if the state didn't step in the federal government may still step in.

A pardon only pardons someone of a specific crime, not of all crimes. This means that someone can still be found guilty of a related crime. For instance a murder may be charged with conspiring with the president to commit murder or assault with a deadly weapon. There is also the common fallback of "conspiracy to deprive an individual of their constitutional right" which is the most common crime the federal government uses when they think that something happened to make a state trial not be sufficient (such as when racist jury set a guilty man free). The federal government can still charge the individual with these, and likely many other crimes, that he was also guilty of when he killed someone, and since the president did not originally pardon the man of these crimes, and is no longer in office to do so when the man is arrested for the new charges, the murderer will still face trial in federal court for them.

  1. A rational man wouldn't risk a pardon

For the reasons listed above, plus the need to trust that a president would risk loosing his position by abusing a pardon and not be removed from office before he can act, there is a very real chance that a murderer will still end up spending his life in jail even if the president promises to pardon him. As such a wise person will not commit the murder even with a promise of a pardon, though most criminals are not acting very rationally (many crimes do not offer sufficient benefit to justify the risk of jail time when considered from purely rational level) so he may still find someone crazy or stupid enough to commit the crime.

All of these examples assume the president were to blatantly abuse his powers as president. In most of the cases someone has to do something that breaks tradition, such as removing a president or violating a very sacred policy of avoiding double jeopardy across jurisdictions, to stop the president. If a president were to act in a blatantly immoral manner people will step up to resist him, but what if the president's actions weren't quite so obviously wrong?

In fact presidents have effectively overruled laws by pardoning individuals found guilty of them, or simply putting out a presidential order to not enforce the law, on numerous occasions. K dog gave one example, but I think an even more obvious example in the modern era would be marijuana use.

Use, and ownership, of marijuana is technically illegal on the federal level, despite being made legal in a number of states. The reason that people are able to openly use, and sell, marijuana despite it being illegal federally is that Obama basically put out a presidential order stating that we should not prosecute anyone in those states for marijuana use. Effectively Obama invalidated the federal law to allow the states to try experimenting with marijuana. Now that protection only was guaranteed whiles while Obama is in office, Trump could easily have changed that policy, as could the next president, though for now Trump seems fine with allowing that policy to stay in place.

So a president can invalidate laws with pardons or, more often, executive orders. However, he generally needs some level of justifiably to do it. He needs at least a sizable minority of individuals, usually those in his party who are more likely to defend him in principle, to side with him. If he ever abuses this power too far there are some checks and balances, both officially and unofficially, which could step in to stop him.

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Could a US President abuse their pardon powers to unilaterally make laws?

No. by definition, pardoning is case specific and duration-limited -> it can only done by the sitting president. in contrast, laws are applied to all of us (in theory anyway) and go on indefinitely, until it is superseded or nullified.

Could I have my political enemies killed by promising to pardon their killers?

you could indeed. but it would be unwise for you and the person doing it for you. impeachment doesn't take a long time, and prosecuting a crime can take a long time. so your accompanies run the risk that before they get pardoned by you, you are thrown out of the office yourself.

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In general, a criminal law forbids someone from doing something. A pardon forgives someone who has been convicted of breaking a law. Therefore, use of pardons could, in theory, effectively nullify a law. But they couldn't make a new law, in the sense of forbidding a particular activity.

An Administration can also effectively nullify a law by refusing to prosecute anyone accused of breaking it. This has happened and can be extremely controversial; for a recent example, here is a story about a Trump reversal of an Obama nullification of portions of immigration law.

http://insider.foxnews.com/2017/09/05/daca-jonathan-turley-reacts-obama-made-law-executive-order-congress-didnt-pass

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