Pardon Me
Yesterday, I commented on the breaking investigation of Scott Bloch at the Office of Special Counsel, who far from pursuing his duty to protect federal whistle-blowers, used his office to expose and squelch them. We might hope to see actual justice come from this were it not for the presidential power of pardon.
The US Constitution provides that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment” (Article II, Section 2). I have no particular objection to this provision, nor to its use, as such, but it is prone to gross abuse, as it was when Ford pardoned Nixon, disgraced in the Watergate scandal and likely to face criminal charges:
“Now, therefore, I, Gerald R. Ford, President of the United States, pursuant to the power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from July (January) 20, 1969 through August 9, 1974.”
Note that the pardon does not mention any particular illegal act. The pardon excuses “all offenses.” Not just Watergate, but the infamous “enemies list” and the illegal harassment of political liabilities that came with it, war crimes, illegal taping of conversations in the Oval Office. I doubt Nixon sold vital national secrets wholesale to the Russians, or that he strangled three dozen pregnant women in the Oval Office during his term, but if he did, he’s covered. The pardon excuses “all offenses.” Note, too, that the pardon precedes conviction. While everyone knows Nixon was complicit in the Watergate coverup, he is not legally responsible—nor can he be, in a nation that presumes innocence until guilt is proven. Without the possibility of conviction, even the investigation is effectively closed, and with it the possibility of catching an expanding ring of corrupt officials.
Employed this way, presidential pardon ceases to be an expression of mercy, and instead becomes a blanket license to break the law. “Not saying my good friend Special Prosecutor John Smith did anything wrong, but if he did, he’s still not liable, neither in person nor in his execution of office. Also, you can’t use the threat of prosecution to get him to spill the beans on anything I did wrong—not that I did, of course—or to seize any correspondence he may have that just happens to mention me—not that there is any. But you aren’t allowed to investigate, regardless.”
Nixon’s pardon marked a sea change in the power of presidential pardon. Before Nixon, pardons were given primarily to a president’s detractors: Washington pardoned the leaders of the Whiskey Rebellion, angry at his agricultural tax; Andrew Johnson pardoned Confederate soldiers; Harding pardoned labor leader Eugene Debs; and Truman commuted the death sentence to life imprisonment for Oscar Collazo, who attempted to kill Truman. After Nixon, we began to see an expanding list of increasingly brazen pardons for close friends and political supporters: Reagan pardoned George Steinbrenner, a major campaign contributor; Bush the elder pardoned officials complicit in the Iran-Contra Affair, including pardoning Weinberger before a trial; Clinton pardoned his Whitewater business partner, his Secretary of HUD of lying to the FBI, Democratic Congressman Dan Rostenkowski of laundering money through the post office, and his own brother of drug charges.
Such pardons tend to come at the end of the presidential administration, when the president can take little heat for pardons offered for corrupt motivations. Indeed, it seems likely that Clinton has set a precedent for the technique in his widely criticized pardons and commutations delivered on his final day in office. There is no reason to expect Bush the lesser to be any more circumspect in his behavior. He has proven willing to stand behind his supporters indefinitely, and in the face of well-documented cause for condemnation. He has also proven eager to place the presidency above the law, and even above the Constitution, in his claims that executive privilege extends not only to presidential behavior, but to the entire executive branch of government. Already he has commuted Scooter Libby’s sentence, in part to repay loyalty and in part to prevent any further investigation. We can expect to see blanket pardons for Bush’s personal network on his departure from office that will put Clinton’s sleazy little list to shame. Granted, Bush’s gratitude is largely limited to those who can serve Bush himself in the future—nobody seems willing to give Gonzales a job despite taking a bullet for the president—but simply hushing investigation should be motive enough for our scion of entitlement.
I’m not a big fan of Constitutional amendment; too often it’s a method of placing an unconstitutional law above objection, and, being unconstitutional, amendment proposals are often pretty objectionable, too: proposed marriage amendment, a flag-burning amendment, a prayer-in-schools amendment. But curbing the abuse of a constitutional power is entirely appropriate for an amendment. Sharper legal minds than mine will need to work out the details and close loopholes, but at a minimum, the power of presidential pardon should be limited in two critical ways. One: presidential pardon should apply only to specific crimes, and not to criminal behavior generally. Two: presidential pardon should apply only to crimes for which a conviction has already been secured.
If anyone digs in his heels on the grounds that law should err on the side of compassion, argue it this way: our legal system presumes innocence. It is impossible to pardon anyone for a crime which the law does not recognize he has committed. A presidential pardon implies guilt, even as it denies legal liability. And for the law-and-order types, pardons should be anathema in the first place.