- The Washington Times - Wednesday, April 19, 2000

One of the great challenges for observers of the current administration is determining when it is speaking English and when Clintonese, a dialect which uses the same words, though often with the opposite meaning. A fine example of the difficulties is provided by last week's pardon story, which began with speeches by the president and vice president to the American Society of Newspaper Editors.

Asked by one of the attendees whether he would seek or accept a pardon from a President Gore, President Clinton responded: "Well, the answer is I have no interest in it." In English, this would seem to justify the lead sentence in a UPI story by Mark Kukis: "President Clinton Thursday said he would neither request nor accept a future White House pardon … ." The president appears to have gone the extra mile in his answer. Not only would he not accept a pardon: he would not even condescend to think about one. However, in Clintonese, the president's answer may well have meant: "Although I have no interest in one, I will later if a trial goes wrong" or, perhaps, "one need not be concerned to accept that which allows no rejection."

That the president was speaking in Clintonese gains plausibility when one puts his remarks in context. The previous day the vice president had also lapsed into Clintonese to avoid saying whether he would offer Mr. Clinton a pardon: "President Clinton is way ahead of you on this. He said publicly some time ago that he would neither request nor accept a pardon, so that's the answer to the question." Interpreted as English, this means that Mr. Gore would not risk irritating Mr. Clinton with a gift which might be hurled back into the Oval Office. However, as Republican Party chairman Jim Nicholson was quick to point out, it was not the president, but his lawyer, who was way ahead of the questioner. In Clintonese, then, Mr. Gore's statement may mean: "I would pardon Mr. Clinton only if I learned his lawyer's view was not his" or, possibly, "I would pardon him only if his acceptance were unnecessary."

That brings us to a crucial factor Mr. Nicholson overlooks. It is not quite true to say, as he does, that "the real question, perhaps the question of the year, is whether or not he will accept a pardon." For, as Mr. Clinton probably realizes and as Mr. Gore very well may, too, acceptance is not required for a pardon to become effective. The view that it is is a relic of a discarded common law doctrine, which regarded pardons as private person-to-person transactions.

According to this view, as E.S. Corwin summarizes it from Chief Justice Marshall's decision in United States vs. Wilson: "a pardon is like a deed, to the validity of which delivery and acceptance are essential." However, in a 1923 case, President Coolidge successfully remitted the sentence of a would-be martyr named Craig and thereby established that acceptance was unnecessary. In the case of poet and congressman Gerald Chapman, whose sentence was commuted by Coolidge, a district court vividly made the same point: "If there is a 'right to incarceration,' it is certain that it is not one of the rights guaranteed by the Fourteenth Amendment to the Constitution of the United States nor by any other provision of that document."

Justice Holmes' definitive decision in Biddle vs. Perovich (1927) made this new view of pardons constitutional doctrine. Justice Holmes observed that pardons are constitutionally effective, provided only that they lessen (or eliminate) rather than increase a penalty. As "a determination of the ultimate authority" and not a "private act of grace," they require no assent. "Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent determines what shall be done." The "whether he liked it or not" phrase sounds suspiciously like Mr. Clinton's "I have no interest" phrase. Perhaps he has reviewed the Perovich case.

In any event, were a pardon to be issued, Mr. Clinton would not have the choice of continuing his constitutional martyrdom by rejecting it. So neither Mr. Gore nor Mr. Clinton has come close to answering the pardon question. Nor would it be at all proper for Mr. Gore to commit himself in the midst of a political campaign on a matter requiring careful deliberation with only the public good in view. However, such a principled position would best be stated in ordinary English.

David A. Nordquest is a writer living in Erie, Pa.

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