This runs into one of the main problems highlighted by Trump, which is giving the president discretion creates real agency costs. Life is complex, and Congress moves slowly, so there are areas where you want to give the president discretion, but every time you do so, you create an opportunity for corruption.
For example, you want the government to be able to respond to immediately a disaster, but it's hard to statutorily define when a disaster is bad enough to warrant Federal attention or what steps to take in response to a given disaster, so you grant the President leeway to make those determinations. That works fine until you have Trump using that discretion to squeeze favors out of people and punish areas that didn't vote for him.
Same with pardons. You list a lot of good reasons to give the President (or someone) discretion over how harshly we punish particular criminal acts, but it's also true that that discretion can be abused. We have a long history of presidents abusing the pardon power with lame-duck pardons of friends and family, who wouldn't have been pardoned but for that connection. That abuse is less than ideal, but doesn't matter all that much - Seth Rich's pardon was sketchy, but it didn't really impact the country. However, Trump demonstrated you can use the pardon power for much more nefarious purposes. For example, he pretty clearly used the promise of a pardon (delivered in the case of Stone and Manafort) to cover up his own wrongdoing. The expected pardon of the January 6 rioters also opens the door to the President asks to do knowingly illegal things and then pardoning them for it (at least so long as they only violate federal law), particularly when combined with the Supreme Court's recent broad grant of immunity to the President.
You wind up with a nasty situation where limiting the pardon power to avoid the problems highlighted by Trump's abuses has real costs, and you have to figure out how to balance the two sides. Ideally, you do that by electing politicians who aren't corrupt, authoritarian fraudsters, but that doesn't seem like a viable option these days.
The public is not going to always elect good Presidents, and you can't write the Constitution to constrain every bad thing a President might do.
Bear in mind as well that political hobbyists WAY overrate abstractions about the "rule of law" in politics and profoundly underrate (and indeed do not even think about) the interests of people in prison or under supervised release. The reality is that Trump issuing a bunch of pardons to January 6 participants will not be optimal (indeed, it will be bad), but many of those people have already served time in prison and suffered punishment, and there's still lots of deterrence in that. In other words, ask yourself, are you really convinced these people are going to pull another January 6 or do you not like the symbolism of them getting retroactively cleared?
And now compared to that to all the actual people who are on death row or kept in prison way too long or subjected to onerous supervised release conditions. Which is actually a larger harm? Which actually causes more problems for society (failure to reintegrate convicts causes more crime)?
Political hobbyists care way too much about the narrow issue of political offenses and way too little about real people, especially prisoners who, after all, often don't even vote. When you take a step back, it's a no brainer that there should be a pardon power even if Trump gets to use it.
My concern with the anticipated 1/6 pardons are less with respect to the rioters themselves, but that it's a fairly rapid step down a path where Trump is sending Proud Boys to beat up and intimidate political opponents, sending out his version of the Watergate Plumbers, or just directing his administration to ignore the Impoundment Act, all with the promise of an immediate pardon for anyone involved. While I that in the age of Trump, people are too quick to jump to concerns over the "rule of law," a system where the President's goons aren't subject to federal criminal law because they will just get a blanket pardon does create a real concern.
You can't write the Constitution to constrain every bad thing a President may do, but the Constitution is intended to take a stab at it. The founders thought the answer was checks and balances, and possibly some hope that the President will display a greater level of ethics than Trump can manage, which left room for giving the President certain levels of discretion. If you can't count on those protections, then you need to either find other ways to ensure the President doesn't abuse his power or think about limiting that power, even if limiting it will have real downsides.
I think the presidential immunity decision by SCOTUS is a much bigger threat on that. And unlike the pardon power, that decision was extraconstitutional.
EDIT: I should probably be even more explicit on this. I think it would be a disaster to limit the pardon power in any way. I think even if the President massively abuses it in political cases, the universe of political cases is not large and the belief people have that the country will go to hell if political cases aren't prosecuted is not warranted. And if a President really "unleashed the proud boys", he would pay for it in the next election, or his party would.
What we should actually be looking to do is to expand the universe of pardons. We should show more mercy, not less, and push towards extending the same grace to normie prisoners that we extend to Hunter Biden.
An Open Letter to President Biden: Supporting Your Decision to Pardon Hunter
Trump turned pardons into tools of corruption, shielding cronies and stacking courts to protect himself. Biden’s decision to pardon Hunter is a stand against the GOP's weaponization of justice.
If I believed that was really the deciding factor, I might agree. But my reading of it was the campaign contributions and Clinton's affinity for/relationship with Denise Rich were the decisive factors.
I should add Rich, as a fugitive, was a particularly bad person to pardon.
This runs into one of the main problems highlighted by Trump, which is giving the president discretion creates real agency costs. Life is complex, and Congress moves slowly, so there are areas where you want to give the president discretion, but every time you do so, you create an opportunity for corruption.
For example, you want the government to be able to respond to immediately a disaster, but it's hard to statutorily define when a disaster is bad enough to warrant Federal attention or what steps to take in response to a given disaster, so you grant the President leeway to make those determinations. That works fine until you have Trump using that discretion to squeeze favors out of people and punish areas that didn't vote for him.
Same with pardons. You list a lot of good reasons to give the President (or someone) discretion over how harshly we punish particular criminal acts, but it's also true that that discretion can be abused. We have a long history of presidents abusing the pardon power with lame-duck pardons of friends and family, who wouldn't have been pardoned but for that connection. That abuse is less than ideal, but doesn't matter all that much - Seth Rich's pardon was sketchy, but it didn't really impact the country. However, Trump demonstrated you can use the pardon power for much more nefarious purposes. For example, he pretty clearly used the promise of a pardon (delivered in the case of Stone and Manafort) to cover up his own wrongdoing. The expected pardon of the January 6 rioters also opens the door to the President asks to do knowingly illegal things and then pardoning them for it (at least so long as they only violate federal law), particularly when combined with the Supreme Court's recent broad grant of immunity to the President.
You wind up with a nasty situation where limiting the pardon power to avoid the problems highlighted by Trump's abuses has real costs, and you have to figure out how to balance the two sides. Ideally, you do that by electing politicians who aren't corrupt, authoritarian fraudsters, but that doesn't seem like a viable option these days.
The public is not going to always elect good Presidents, and you can't write the Constitution to constrain every bad thing a President might do.
Bear in mind as well that political hobbyists WAY overrate abstractions about the "rule of law" in politics and profoundly underrate (and indeed do not even think about) the interests of people in prison or under supervised release. The reality is that Trump issuing a bunch of pardons to January 6 participants will not be optimal (indeed, it will be bad), but many of those people have already served time in prison and suffered punishment, and there's still lots of deterrence in that. In other words, ask yourself, are you really convinced these people are going to pull another January 6 or do you not like the symbolism of them getting retroactively cleared?
And now compared to that to all the actual people who are on death row or kept in prison way too long or subjected to onerous supervised release conditions. Which is actually a larger harm? Which actually causes more problems for society (failure to reintegrate convicts causes more crime)?
Political hobbyists care way too much about the narrow issue of political offenses and way too little about real people, especially prisoners who, after all, often don't even vote. When you take a step back, it's a no brainer that there should be a pardon power even if Trump gets to use it.
My concern with the anticipated 1/6 pardons are less with respect to the rioters themselves, but that it's a fairly rapid step down a path where Trump is sending Proud Boys to beat up and intimidate political opponents, sending out his version of the Watergate Plumbers, or just directing his administration to ignore the Impoundment Act, all with the promise of an immediate pardon for anyone involved. While I that in the age of Trump, people are too quick to jump to concerns over the "rule of law," a system where the President's goons aren't subject to federal criminal law because they will just get a blanket pardon does create a real concern.
You can't write the Constitution to constrain every bad thing a President may do, but the Constitution is intended to take a stab at it. The founders thought the answer was checks and balances, and possibly some hope that the President will display a greater level of ethics than Trump can manage, which left room for giving the President certain levels of discretion. If you can't count on those protections, then you need to either find other ways to ensure the President doesn't abuse his power or think about limiting that power, even if limiting it will have real downsides.
I think the presidential immunity decision by SCOTUS is a much bigger threat on that. And unlike the pardon power, that decision was extraconstitutional.
EDIT: I should probably be even more explicit on this. I think it would be a disaster to limit the pardon power in any way. I think even if the President massively abuses it in political cases, the universe of political cases is not large and the belief people have that the country will go to hell if political cases aren't prosecuted is not warranted. And if a President really "unleashed the proud boys", he would pay for it in the next election, or his party would.
What we should actually be looking to do is to expand the universe of pardons. We should show more mercy, not less, and push towards extending the same grace to normie prisoners that we extend to Hunter Biden.
An Open Letter to President Biden: Supporting Your Decision to Pardon Hunter
Trump turned pardons into tools of corruption, shielding cronies and stacking courts to protect himself. Biden’s decision to pardon Hunter is a stand against the GOP's weaponization of justice.
https://open.substack.com/pub/patricemersault/p/an-open-letter-to-president-biden?r=4d7sow&utm_campaign=post&utm_medium=web
> I still think Bill Clinton’s pardon of fugitive financier Mark Rich .. is still the world champion of “corrupt pardons”.
Allow me to defend this! If stalwart allies like Ehud Barak and Shimon Peres press for a pardon, that alone is as good a reason as any.
If I believed that was really the deciding factor, I might agree. But my reading of it was the campaign contributions and Clinton's affinity for/relationship with Denise Rich were the decisive factors.
I should add Rich, as a fugitive, was a particularly bad person to pardon.