These days many people like to throw around heavy-handed accusations at the current Bush administration, accusations of serious offenses such as egregious abuse of power and systematic dismantling of the separation of powers. One such accusation of outrageous violations of the constitution came up this summer. This accusation dealt with the presidential power of pardon. The accusers said that George W Bush had used the pardon in a matter that flies in the face of what our founding fathers had intended. So, I suppose, this begs the question what did our founding fathers intend in regards to the pardon and how has Bush performed in comparison?

Well, in Federalist papers number 69 and 74 Hamilton tells us exactly what the constitution says about the presidential power of pardon. Hamilton articulates his reasoning as to why the pardon is an intricate and important part of the process of discerning justice in these two essays. In this passage from federalist 74 he outlines exactly what the pardon is meant to do:

He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

In this passage he is basically saying that the pardon is in place in order to provide a type of safety valve for cases in which the judiciary is too harsh in its prosecution and judgment. Moreover he seems to be implying that the pardon is a necessary part of the judicial system because without it justice is blood thirsty and vindictive. And since the pardon is an integral part of making sure that our judicial system is fair and even-handed it ought not to be restrained anymore than the constitution allots.

However, for the anti-federalists Hamilton’s reasonings weren’t satisfactory, the pardon seemed much too powerful. It seemed like another way that the new executive resembled a king. So, in response to these anti-federalists concerns that the pardon is too powerful, as given to the president by the constitution, he makes this argument:

The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity? The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited ``to levying war upon the United States, and adhering to their enemies, giving them aid and comfort"; and that by the laws of New York it is confined within similar bounds.

Here Hamilton tells us that the pardon power given to the president, while it may seem to some as being the possible tool of a tyrant, is actually far less of a corrupting power than the pardoning power given to the governor of New York. But more importantly there is confined within this assertion an underlying argument that the pardon power will not be used as a means by which for the executive, or supporters of the executive, to commit high crimes and then paralyze the justice system in order to not be held responsible for those crimes.

The next criticism that Hamilton addresses is one which says that the pardon power ought not be concentrated in the hands of one man. At the very least the legislature should be given a say in pardons which involve treason, but I think the overall point of the criticism is that the pardon is safer when shared between one or both houses of the congress and the president. Hamilton responds to this criticism in Federalist 74 saying:

But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity.

While he may be talking about a specific part of the power of the pardon, in this case treason, I think that his underlying point is that the pardon needs to be an efficient and expedient power and thus it must be invested into only the executive.

Furthermore Hamilton, seeing that large bodies may be tainted with those who sympathize with or are in irrational opposition to those who’ve been convicted, asserts that the pardon being solely in the executive will produce better judgments on whether or not to give clemency. He articulates this position in this section of Federalist 74:

It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever.

He basically contends that the president is better fitted to make clear judgments that are free from the in-fighting and political games involved in larger bodies of government.

In all of this Hamilton gives us a very clear picture of what he thinks the pardon ought to be used for and in what manor. He sees it as an integral part of a fair and even-handed justice system. He presents it as a tool that is to be used to correct justice when it is exceedingly harsh. He contends that it must be invested only in the president because it will be easier for a single person to exercise the pardon effectively and fairly. At the same time he argues that because of the restrictions applied to the pardon by the constitution it will not become a corrupting force or the tool of a tyrant.

So then the other half of the question still remains, how does President Bush’s use of the pardon fit into Hamilton’s picture? And underlying to that question is another question; does it fit Hamilton’s ideas at all? The answer, to me, seems to be yes and no.

When looking at the pardon record of George W Bush it becomes quite evident that he is not using his pardon powers in the manor that Hamilton had described. However, what seems most surprising, to me, about the way the president is using the pardon is that he is using it in a much less powerful way than Hamilton intended and in a FAR less powerful way than the anti-federalists feared.

The way the Bush administration uses the pardon is being self-constrained by a set of guidelines, which are not included anywhere in the constitution, and that are followed religiously, that are outlined by the Department of Justice. Section 1.2 of the Rules Governing Petitions for Executive Clemency states:

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.

These rules seem to fly directly in the face of what Hamilton saw the role of the pardon being. How can you have “easy access to exceptions in favor of unfortunate guilt” if pardons are unavailable to even be considered until at least five years after the sentence has been served?

President Bush’s use of the pardon is impotent and amounts to a formality when compared to Hamilton’s original vision. The numbers make this clear as Bush has only pardoned 113 people and commuted only 4, this out of countless convictions that have been handed down during his presidency. Furthermore, in April of ‘06 New York Times described the pardons handed down by President Bush as being “mainly to allow people who committed minor offenses and served their sentences long ago to clear their names.” That description seems accurate when you examine the list of those Bush has pardoned; a list that includes crimes which occurred more than a half-century ago.

Bush’s self-imposed guidelines and pardon record, while they go to prove the anti-federalists wrong, have shattered Hamilton’s vision of what the pardon should be. Bush’s record in regards to full pardons almost makes me want to say that he has completely marginalized an important power of the president and let an integral part of our justice system laps into insignificance. However, I say almost for a reason. There is one redeeming factor of this administrations pardon record. That factor is the case of the commutation of Lewis Libby.

The Libby case seems, at least to me, to be the one instance where President Bush uses his pardon power in the way that Hamilton and the Constitution of the United States intended. The situation that Mr. Libby found himself in seems, to me, to be the exact situation that the pardon was intended to correct.

Justice was miscarried at very least in Libby’s sentencing, if not in all the aspects of the prosecution, or as the editors of the National Review put it Libby was “Convicted of lying about a crime that the prosecutor can’t even prove was committed”. The same point is also reiterated by William Kristol of The Weekly Standard when he says “George W. Bush can do something to begin to make up for the injustice a prosecutor appointed by his own administration brought down on Scooter Libby. And he can do something to avert the further injustice of a prison term.”

However, in the previous statement Kristol goes one step further than just saying that Libby’s case was a miscarriage of justice, he also calls on the president to use his pardon to fix the miscarriage. This call is repeated by the editors of the National Review when they claim that “Justice demands that Bush issue a pardon and lower the curtain on an embarrassing drama that shouldn’t have lasted beyond its opening act”

In response to the case President Bush issued a statement in which he says:

“I respect the jury’s verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby’s sentence that required him to spend thirty months in prison.”

Thus doing what I and many others consider to be his obligation; that obligation being issuing a commutation, which is a type of pardon, in order to correct the immoderation of the justice system in this specific case. He used the pardon in an efficient and expedient matter, which would have most likely been impossible if he had been forced to seek the approval of one or both bodies of congress due to the partisan loyalties that prevail in them, just as Hamilton intended. It is also clear that he did not use the pardon in a corrupt manor as he only commuted Libby’s sentence because he felt it to be excessive. If he had used it in a corrupt manor he most likely would have given Libby, a member of his administration and party, a full pardon and would have acted a lot faster in doing so. Hence this case can be seen as a perfect example, at least to me, of how the pardon ought to be used.

But, with exception given to his actions in regards to the Libby case, the president has not used his power in accordance to the intentions of Hamilton and the Constitution. What is most surprising about that is that he has not used it in an abusive manor, as the anti-federalists feared, but rather in an impotent manor. All of this leads me to the conclusion that those who accuse the president of using the pardon in a manor that flies in the face of what the founders intended are, in fact, right. However they are right for all the wrong reasons.