Congress should cast sunshine on presidential pardons for political allies or friends. They create a dual system of justice — one for the rich and powerful; another for the poor and powerless — that spawns public cynicism about the law, for example, the pardons of former President Nixon and former Director of Central Intelligence John Deutsch.
Forcing pardons for loyal lieutenants or campaign contributors into the limelight will deter the president from their misuse. The recent conviction of Vice President Richard Cheney’s former chief of staff, Scooter Libby, and speculation about a pardon from President Bush has renewed concern with political conflicts of interest that chronically beset the pardon power.
Article II, Section 2, Clause 1 of the Constitution crowns the president with authority to “grant Reprieves and Pardons … except in Cases of Impeachment.” The United States Supreme Court elaborated in Shick v. Reed (1975) that the pardon “power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress.”
The Founding Fathers anticipated that the pardon power would be used to lessen the severity of draconian criminal codes, not to favor political friends and tarnish equal justice. Alexander Hamilton explained 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 an easy access of exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
But the pardon authority regularly encounters conflicts of interest indistinguishable from circumstances where the president’s subordinates or benefactors are suspected of crime. In the latter case, special prosecutors or independent counsels have been appointed free from the customary control of the president.
Special prosecutors were appointed to investigate Nixon’s complicity in Watergate. Independent counsels were appointed to investigate the Iran-Contra affair and Whitewater. Patrick Fitzgerald was appointed special prosecutor to investigate the Valerie Plame leak case, which culminated in Libby’s conviction for false statements.
The universe of persons subject to the jurisdiction of special prosecutors of independent counsels have included the president and vice president, officials in the Executive Office of the President, Cabinet members, the director and deputy director of central intelligence, the commissioner of internal revenue and the chairman and treasurer of the principal national campaign committee seeking the election of the president, and any officer of that committee exercising authority at the national level. These inroads on the executive’s power to prosecute were sustained by the Supreme Court in Morrison v. Olson (1988).
The Constitution precludes Congress from exercising a “controlling influence” over presidential pardons. But the Necessary and Proper Clause empowers Congress to insist on clear accountability to deter their misapplication, just as Congress was authorized to create independent counsels to prevent miscarriages of justice in law enforcement. Pursuant to that clause, Congress should enact legislation that would prohibit pardons for presidential subordinates, party officials, or political donors less than 120 days before the president’s term expires.
The prohibition would expose the president to meaningful political retaliation or injury for outlandish pardons. Thus, President William J. Clinton might have balked at pardoning Marc Rich had the clemency been forced forward by four months in lieu of his last day in office.
Congress should also require the president to testify under oath before a joint House-Senate Judiciary Committee to respond to questions about pardons issued in the face of political conflicts of interest. President Gerald Ford voluntarily testified before a House Judiciary Subcommittee about his pardon of former President Nixon to dispel suspicions of a corrupt bargain (resignation for pardon). The presidential appearance did not impair the independence of the White House, yet fixed accountability for the pardon clearly on Mr. Ford. It became a political albatross in Mr. Ford’s 1976 campaign to defeat Democratic challenger Jimmy Carter.
In sum, as Justice Louis D. Brandeis sermonized, sunshine is the best disinfectant. Congress should not tarry in applying that adage to presidential pardons.
Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda, a nonpartisan organization dedicated to restoring the Constitution’s checks and balances and protections against government abuses.