- The Washington Times - Tuesday, February 20, 2001

The threefold reasons that animated the presidential pardon power are antiquated. Moreover, former President William Jefferson Clinton's orgy of bon voyage pardons discredits the confidence of the Founding Fathers that abuses would be deterred by a dread of obloquy or dishonor.

Accordingly, President George W. Bush should honor his campaign pledge to restore honor to the White House with an executive order prohibiting pardons without the concurrence of both the attorney general, the director of the Federal Bureau of Investigation, and, if relevant, the head of any agency that formerly employed the pardon recipient when the federal crime was perpetrated.

The executive order should further require that all pardon requests be published in the Federal Register and be open to public and government comment for 60 days. Finally, the president should be obliged to disclose all lobbying on behalf of a pardon absent a certification of a national security need for confidentiality. As Supreme Court Justice Louis D. Brandies instructed, sunshine is the best disinfectant.

Article II, section 2, clause 1 of the Constitution empowers the president "to grant reprieves and pardons for offenses against the United States." The U.S. Supreme Court has repeatedly rebuffed claims that Congress might encroach upon that facially sweeping authority. In Shick vs. Reed (1974), for example, the court elaborated: "[T]he [pardon] power flows from the Constitution alone, not from any legislative enactments, and … it cannot be modified, abridged, or diminished by Congress."

Alexander Hamilton in Federalist 74 explained that unrestricted pardon power might be needed to put down insurgencies or sister challenges to lawful government authority, like the Whiskey Rebellion or the Civil War, by offers of amnesty. He declared that, "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." More than two centuries of national growth, travails and ordeals under the Constitution, however, has eliminated any worry that domestic challenges to lawful authority might require presidential pardons to safeguard our sacred covenant.

At the Constitutional Convention, James Wilson of Pennsylvania and later an associate justice of the Supreme Court also defended pardons before convictions as potentially necessary "in order to obtain the testimony of accomplices." Without a pardon, the Fifth Amendment privilege against compulsory self-incrimination would then have prevented government investigators from requiring criminal foot soldiers from testifying against their superiors, like drug-trafficking retailers implicating drug-trafficking wholesalers. But federal use immunity statutes now perform the service of presidential pardons, and their constitutionality has been sustained as adequate surrogates for the Fifth Amendment privilege by the Supreme Court in United States vs. Kastigar (1972).

Our Constitution was born when judicial opportunities to correct criminal law errors or harshness were slim, and punishments smacked less of Portia's mercy in "The Merchant of Venice" and more of Shylock's pound of flesh. Criminal appeals were sharply circumscribed, as were collateral attacks on the legality of a conviction or sentence.

All that is now ancient history. Appeals by defendants are a matter of right under the federal criminal code, and a companion federal statute, 28 U.S. Code 2255, authorizes federal inmates to seek judicial relief on the ground that either their conviction or sentence was tainted. This revolution in criminal law has largely mooted the third justification of the executive pardon as an instrument of forgiveness set forth by Hamilton also in Federalist 74: "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 easy access to exceptions in favor of unfortunate guilt, justice would wear a face too sanguinary and cruel."

Hamilton, however, despite his keen sense of human depravity, did not conceive of an occupant of the White House, like Mr. Clinton, who would glorify scandal as a badge of honor, and be undeterred from pardon abuses by the prospect of public contumely. He thus confidently maintained in Federalist 74 that a sober sense of individual responsibility would naturally inspire the president to "scrupulousness and caution" in use of the pardon; and, that "dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind."

President Clinton has exposed Hamilton as an ingenue. In stoutly defending his pardon of fugitive Marc Rich in an op-ed column last Sunday in the New York Times, Mr. Clinton insisted that squalid pardons are unworrisome unless they amount to a "quid pro quo." In other words, anything short of criminality is de rigueur. Mr. Clinton also asserted that a holy trinity of Republican attorneys Len Garment, William Bradford Reynolds and Lewis Libby had championed a pardon for Mr. Rich. All three hotly assailed Mr. Clinton's assertions as counterfactual in a New York Times news story the same day. Who do you think is lying in utter disdain of personal honor?

Despite its vastly diminished importance, the pardon power is still appropriate to catch the non-trivial injustices that escape judicial correction on appeal or through collateral attack, especially in eras when mandatory minimum sentences are faddish among lawmakers. President Bush, nevertheless, is constitutionally empowered to elevate the pardon above suspicion by self-imposed restraints enshrined in an executive order. The attorney general and FBI director are better situated than the president to determine whether a pardon would be proper in the name of mercy or evenhandedness, and thus their concurrence should be required under a Bush decree. It should also expose all arguments favorable or unfavorable to a pardon request and their advocates in the public record so public opinion and congressional oversight might enjoy influence. Only national security secrets should be withheld.

Once Mr. Bush issues the recommended executive order, it would bind both him and all successors unless formally revoked, which would signal to the nation that something mischievous was afoot and thus bolster the political deterrent to a pardon abuse. The Supreme Court has held that the executive must adhere to self-imposed regulations despite retention of a constitutional power of revocation, as in Service vs. Dulles (1957) and Vitarelli vs. Seaton (1959).

In sum, the pardon ball is in President Bush's court, and will test his statesmanship and devotion to honor.

Sign up for Daily Newsletters

Manage Newsletters

Copyright © 2021 The Washington Times, LLC. Click here for reprint permission.

Please read our comment policy before commenting.


Click to Read More and View Comments

Click to Hide