American Government: Presidential Pardons

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On the last day of his presidency Bill Clinton pardoned or commuted prison sentences for 176 people. Many were drug offenders. Others included a rich fugitive guilty of tax fraud. He was a former husband of a Clinton campaign donor. Several felons who paid Clinton's brother-in-law to lobby for them, and Clinton's half brother. It appeared to many that these convicted felons simply bought their freedom. There was outrage about this, and concern that the pardons did not go through standard department of justice procedures and review. Many members of Congress talked about investigating allegations of improper influence and wrongdoing.
But could these investigations reverse the pardons? Apparently not. The Constitution gives the president what seems to amount to an unqualified power to pardon. Is a president's power to pardon indiscriminately an appropriate power for the modern presidency? Is it a useful check or part of checks and balances envisioned by the framers of the Constitution, or is it a power that can too easily be abused? What limits, if any, exist to restrain this presidential power? Should there be more?
Now, we know something about the history of the pardon power. It derives from English practice. The British monarch enjoyed unconstrained pardon power until 1701 and would often use it to raise money for the military by conditioning pardons on donations of large sums of money. After independence from Britain, several of the new state governments banned the pardon power. However, the pardon power was included in the U.S. constitution. Alexander Hamilton, the great defender of a strong president argued in the Federalist Paper of '74 that it was a necessary check on the legislature. He also argued that it was an important tool for rebuilding the peace in times of political violence.
Let me read to you what he wrote: Hamilton wrote, "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 general idea behind pardons is that there should always be a last chance for mercy. One can never tell when unusual circumstances may make existing laws too harsh or when a particular judge may go too far.
In debates in the constitutional convention there was an effort to make presidential pardons require a two-thirds vote of the Senate to put some check on them, but that was defeated. The result was the pardon power in Article II of the constitution, and it grants the power of the president to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Note that there's no express limit on the purposes to which pardons may be used. They can apparently be used for civil as well as criminal liability. There are, however, two restrictions. They can only be used for violations of federal law. A president can't pardon someone convicted of violating a state law. That would undermine the notions of federalism and the independent rights of the states. Second, pardons can't be used for impeachments.
Now, the U.S. Supreme Court has noted the far-reaching extent of the pardon power in an otherwise unimportant 1925 case. I want to read to you what that court said. The court said that the president could reprieve or pardon all offenses, and now I'm quoting, "either before trial, during trial, or after trial, by individuals, or by classes, conditionally, or absolutely, and this without modification or regulation by Congress."
Historically, presidents have made liberal use of this pardon power. Today there's a standard procedure. There's an office in the Department of Justice known as the office of the United States pardon attorney, and it prepares a recommendation for the president on each application for a pardon. This appears to have reduced the number of pardons granted. You can see this over the years. Franklin Delano Roosevelt pardoned over 3,600 people. The stolid Calvin Coolidge pardoned over 1,500 people. President Kennedy, however, only pardoned 575, President Reagan, slightly over 400, and President Clinton, 456.
Pardons have been both individual and blanket, which means applying to large groups of people; however, the vast majority have been individual. The reasons for them have varied, but they've been political as well as personal. Let's consider some examples. The first president, George Washington, pardoned the leaders of the Whiskey Rebellion. President Andrew Johnson pardoned almost all the Confederates after the Civil War, provided that they swear a loyalty oath. President Benjamin Harrison pardoned Mormons convicted of polygamy in the Utah Territory. President Harding pardoned Eugene V. Debs, the socialist leader and five times presidential candidate who was serving a ten-year sentence for anti-war activities during World War I. Debs had received over 900,000 votes for president from his prison cell in the 1920 election. Interestingly, as a condition for the pardon, Harding insisted the Debs come to the White House after being released from jail so that the two could meet.
President Gerald Ford pardoned former president Richard Nixon in 1974 for any Watergate-related crimes. He defended it as necessary to end, as he put it, the bitter controversy and divisive national debate, and to reunite the nation. Now, critics charge this was part of a deal. Ford had been the minority leader of the U.S. House of Representatives when President Nixon selected him to serve as vice-president to replace the vice-president who had been elected, Spiro Agnew, who had resigned in disgrace. Critics said this was a quid pro quo, and indeed some think that this cost Ford the 1976 election, which he lost to Jimmy Carter. Interestingly, in May of 2001, Gerald Ford was honored with the Profile in Courage Award by the John Fitzgerald Kennedy Library in Boston for his pardon.
Now, President Carter granted amnesty to Vietnam War draft resisters in 1977 under the pardon power, and he did it his first day in office. This was admired by some as a healing gesture, but seen by others as an insult to veterans. President George Bush pardoned Iran Contra figures in 1992, including the Secretary of Defense, Caspar Weinberger. He did so, however, after the 1992 election, which he lost to Bill Clinton. President Reagan pardoned Robert Wendell Walker, an attempted bank robber. Now, why am I telling you this? It wouldn't be remembered if Walker hadn't been arrested in 2000 for killing his wife and cutting her to pieces. He also pardoned George Steinbrenner, the owner of the New York Yankees, for making illegal campaign contributions during the Nixon era.
President Clinton also pardoned several members of a Puerto Rican nationalist group convicted of a terrorist bombing that injured several police officers. Critics charge that this pardon was aimed at helping his wife's campaign for Senate in New York, a race that was won by now Senator Hilary Rodham Clinton. Finally, President Clinton pardoned Susan McDougal for her role in the Whitewater scandal. Critics charged that it was a reward to her for refusing to implicate the Clintons in the scandal.
Now, presidents have often given conditional pardons. That is to say they grant a pardon on a certain condition, and one example was President Nixon's commuting of the prison sentence of former teamster union leader, Jimmy Hoffa, who had been in prison for embezzling union funds. The condition was that he not resume union activities for at least eight years. It turns out that Hoffa was a long time Republican Party supporter and had funded Nixon during his 1960 presidential campaign against John F. Kennedy. Not entirely unexpectedly, the FBI later discovered that President Nixon had received illegal campaign donations in return for the pardon.
Well, what do we think about the pardon power? Clearly, there may be instances where the Congress or the courts have abused their powers and pardons are appropriate. Pardons may be appropriate to heal the wounds of political battles. I'll give you one recent example. A man named Howard Mechanic had been an anti-war activist during the Vietnam War, and in 1972 he was sentenced to five years in prison for taking part in the burning of a campus ROTC building. Rather than serve his sentence he fled and he took on a new name. He was re-arrested in the year 2000, but he was pardoned by President Clinton.
On the other hand, the potential for presidential abuse remains. What are the constraints on presidential power? For the president seeking re-election, there's clearly a political restraint. That is, the voters may decide to vote against the president for the pardons that were given. This may have been what happened to President Gerald Ford. With lame ducks, that is, presidents who are not running for re-election, the only constraint appears to be the judgment of history. It may well be that in the 18^th and 19^th century the legitimate fear of judicial and congressional excesses required an unconstrained pardon power. In the 20^th Century, however, pardons have been increasingly granted to generous campaign contributors, relatives, or friends of the president. Perhaps it's time to rethink the pardon power.
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