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Pardon Me: The Presidential Pardon Then and Now
On September 8, 1974 President Gerald R. Ford made one of the most controversial decisions ever made by an American president: he pardoned former President Richard M. Nixon for his part in the White House scandal called Watergate. Political analysts say that this decision probably cost Ford the presidency. Ford ran against a relative unknown Democrat Governor named Jimmy Carter of Georgia, but lost to him in the 1976 presidential election.
The pardoning power is one of the most formidable that a president has at his disposal. In one act, a president can dismiss the federal penalty to all actions against a person, save impeachment. He can apply this action to one person or to a thousand simultaneously (called “amnesty”). Over the years, the courts have bestowed great discretion on the president in applying the pardon. It’s probably the most plenary power at his disposal.
The Pardon in America
During the American colonial period, the pardon was exercised by royal governors that operated under royal charter. In the two self-governing colonies of Connecticut and Rhode Island, pardons were granted by the general assembly. After the colonies became “free and independent states” those states moved to take the pardoning power away from the executives and bestow it on the legislatures. Still, five of the thirteen states allowed their governor the pardoning power at the time of the Constitution’s drafting.
When the framers were considering the pardon power at the Constitutional Convention (1787), they were relying on the British model more than their own states. The framers settled on language similar to that of the Act of Settlement which gave the executive the power to pardon in all cases except cases pertaining to impeachment. This almost blanket grant of power did not go without debate. Some delegates, like James Madison, felt that treason should be exempted from the pardoning power. Others wanted the president to be able to pardon, but only with the approval of the Senate. In the end, the limitations (except for impeachment) were rejected and the framers settled on the wording found in Article II, sect. 2 of the Constitution:
The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
Several arguments prevailed to carry the pardon clause in its final form. Proponents of the constitutional pardon objected to the Senate approving the pardon, saying that one man would better fulfill the requirements of justice in granting the pardon than would a committee. Other supporters said that a pardon would be a way to capture the “ringleaders” in a conspiracy by granting a pardon to underlings in that conspiracy.
Alexander Hamilton, having the security of the new republic in mind, believed that the pardon might be necessary to end an insurrection against the United States. He stated in Federalist # 74
... in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.
The Pardon in England
Why would the founding fathers give such a total power to an American president? There was a precedent for the pardon in merry ole England. The power to pardon was central to the royal prerogative and was considered an “act of grace” by the king. The great English legal commentator William Blackstone believed that the pardon balanced “justice with mercy” and it would help endear the people to their sovereign. By 1535, Henry VIII was the sole granter of the pardon. Later, when a dispute arose between Charles II and the Parliament over whether or not pardons could be granted in cases of impeachment, the Parliament slowly began to erode the royal pardon. When Parliament passed the Act of Settlement (1701), they did place some limit on the pardon by stating that the king could not grant pardons in cases of impeachment. In 1721 Parliament granted itself the power to pardon also.
President Gerald R. Ford Pardons Richard M. Nixon
The pardon was first used by Mr. Founding Father himself, George Washington. During the insurrection known as the Whiskey Rebellion, Washington pardoned two rebels involved in that rebellion. Washington’s pardon was also the first use of amnesty which is a wholesale granting of the pardon. Jefferson soon used the pardon for Federalist laws he disapproved of, granting a pardon to those that had been convicted under the Alien and Sedition Act of 1798. By the 1840s the Attorney General was assisting the president by reviewing presidential pardons.
The Presidential Pardon and the Courts
Two major considerations whenever the federal courts rule on the pardon is the scope of the pardon (that is, what is the extent of its reach) and the effect of the pardon (to what degree does it change what it touches). In short, the Court has left the scope of the pardon virtually untouched while placing some constraints on its effect. So, while the courts have not limited the president’s grant of the pardon, they have placed constraints on the effect that it has after its granted.
As for the scope of the pardon, the courts have ruled that the pardon can extend to contempt of court in both civil and criminal cases (Ex parte Grossman ); that it extends to the power to commute a sentence (Ex parte Wells ); that whatever limits are upon the pardon must be from the Constitution only (Schick v. Reed ); that the pardon is not subject to congressional control (Ex parte Garland ); that the pardon can be rejected by the recipient (Burdick v. United States ); but recipients of a commutation cannot reject it (Biddle v. Petrovich ).
As for the effect of the pardon, the Court had earlier ruled that the extent of the pardon would be to treat the pardoned as a “new man,” as if he had not committed the crime (Ex parte Garland , but recent decisions appear to have rejected the sweeping “new man” doctrine expressed in Garland (Nixon v. US ; In re North  and In re Adams  ). Furthermore, convictions for crimes after a pardon can take pardoned offenses into consideration when sentencing (Carlesi v. New York ).
Today, in spite of judicial review and attempts by Congress to curtail it, the power of executive pardon is virtually plenary when it comes to removing the punishment of the crime, but less so on removing the stain of accusation.
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The Presidential Pardon Process
The process used for pardoning is the same as the one established in 1891. Pardons are submitted to the Department of Justice’s Office of the Pardon Attorney. The Pardon Attorney recommends to the Attorney General those pardons that should be granted and the Attorney General makes the final decision on recommendation to the president. Given the large number of pardons, this provides the president a more efficient means of dealing with pardon requests. It also protects him against accusations that there might be some corruption involved in the use of the pardon. It should be noted that the president need not use such a process and can grant a pardon to whoever he wants, save pardons for impeachment.
Throughout history, the pardon has been subject to controversy due to some of the notorious pardons that have been granted by presidents. Some of the more famous pardons went to Jean Lafitte, Brigham Young, Eugene V. Debs, Jimmy Hoffa, Tokyo Rose, G. Gordon Libby, Patty Hearst, George Steinbrenner, and Armand Hammer. Presidents Lincoln and Johnson granted amnesty to former members of the Confederacy. Ford selectively pardoned Vietnam draft dodgers which is hardly remembered after President Carter granted all of them amnesty. Carter's pardons extended to both the living and the dead; Carter pardoned Confederacy president Jefferson Davis over 100 years after the cessation of hostilities between the Union and the Confederacy. George H.W. Bush pardoned six men that had been accused of involvement in the Iran-Contra scandal.
Pimp My Pardon
President Clinton’s use of the pardon is a good example of why the presidency should only be given to responsible adults. To paraphrase P.J. O’Roarke, giving Clinton the pardon was like giving whiskey and the car keys to your teenage son. The Clintons departed from the normal procedure of giving pardons upon the advice of the Attorney General; they indicated that they would seek the advice of others also. They also invited pardons to be submitted to them directly instead of through the Office of the Pardon Attorney. In spite of this departure from precedent, the pardon does not appear to have been a priority for the President. There were no pardons granted in four of his first five years with most of his pardons being granted during his last three years in office. Apparently Clinton thought of the pardon more as a gift than a legal remedy as he tended to grant pardons around Christmas time.
What is even more spectacular about the Clintons are the pardons that they issued. Clinton pardoned his own brother, Roger Clinton and some Democrat bright lights like Susan McDougal, Dan Rostenkowski, and congressional badboy Mel Reynolds. In 2001 it was revealed that the president’s brother-in-law, Hugh Rodham, had received about $400,000 to secure pardons for two criminals which Clinton granted. Once it was apparent that the scandal would go public, Hillary Clinton disclosed the scandal and told her brother to give the money back and said that she was “very disappointed and saddened” by his actions.
Another Clinton spectacular was the pardoning of international commodities trader Marc Rich who had been indicted on tax evasion and illegal trading with Iran (while they were holding Americans hostage). Rich, who was overseas at the time he was indicted, refused to return to the United States. For several years he was on the FBI’s top ten most wanted fugitives. In the meantime, Rich’s former wife was making handsome donations to the Clinton Library. What was Clinton’s response? He pardoned Rich on his last day in office, January 20, 2001 along with 139 other grateful recipients. About 30 percent of Clinton’s pardons were granted on his last day of office.
Public outrage ran high upon hearing about Pardongate. Some suggested that the president’s actions were “criminal.” But they weren’t. It’s not a crime for a president to grant a pardon. If he grants it, it’s the law. If you want presidents that won’t grant pardons to family members, as favors to in-laws, wealthy contributors, and rapists masquerading as congressmen, then don’t elect men like Bill Clinton.
Other Sources on the Presidential Pardon
- Pardon - Wikipedia, the free encyclopedia
- Office of the Pardon Attorney
- An Overview of the Presidential Pardoning Power | Congressional Research Service Report
- The President's Broad Power to Pardon and Commute | The Heritage Foundation
Whatever the merits of President George W. Bush's decision to commute Mr. Scooter Libby's sentence, there is little doubt that it was a permissible act under the Constitution.
- Pardongate Play-by-Play - TIME
- The Marc Rich Case: A Primer - TIME
© 2010 William R Bowen Jr