Breaking into the pardon power: Congress and the office of the pardon attorney.

• Author: Schorr, Lauren

INTRODUCTION

What do a Secretary of Defense, a paramilitary organization, and a commodities trader have in common? No, this is not a riddle, there's really an answer. If you guessed that they were all pardoned, you're on the right track. A President of the United States pardoned each of these three individuals--Caspar Weinberger, the FALN, and Marc Rich, respectively--through the most undemocratic exercise of the power, in a manner entirely shielded from any political accountability.

The pardon process is usually conducted as follows: the petitioner first presents his or her application to the Pardon Attorney, who then sends his report and recommendation to the Attorney General, who reviews it, signs off on it, and then presents it to the President. (1) Although the President is free to make his own determination on each pardon application and does not have to seek the advice of the Department of Justice at all, the President has traditionally relied on this process, as it creates a presumption of legitimacy for the decision. (2) When the President chooses not to take advantage of the assistance of the Department of Justice, as the Presidents did in the controversial cases mentioned above, there is often widespread public outrage against the pardon process. And each time, it is a reminder to Congress that something needs to change with the pardon power.

Moreover, while this process may constrain the President's discretion, it also acts to shield the President's power. Although the Office of the Pardon Attorney was created by Congress, it is located in the Department of Justice and the regulations under which the Pardon Attorney acts are promulgated by the executive; therefore, the power remains tucked tightly into the executive branch. Yet, with Congress having the power to create this office and the power to create responsibilities for this office, should not Congress be able to break into the protected sphere of the pardon power?

The Pardon Clause of the Constitution states in pertinent part, "[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." (3) The Supreme Court has interpreted this clause as granting an unlimited power to the President which is not subject to legislative control, and legal scholars take an almost absolutist view of the pardon power, asserting that it is a "near-unfettered" grant of authority to the President. (4) Despite the view that the President has "plenary clemency authority," (5) there is in fact room for Congress to influence the pardon process, and given the recent uses of the power as highlighted above, Congress needs to become involved.

In this Note, I propose a method to bring Congress into the exercise of the pardon power in a way that is not only constitutional but also adds a much needed element of accountability to the power. Part II provides an overview of the pardon power, specifically examining its history, the purposes of the pardon power, and the role of the Office of the Pardon Attorney. This section will reveal that the pardon power, as it is currently used, expands far beyond the scope of the power as intended by the Framers, and often reaches a point of abuse. Part III examines past attempts by Congress to regulate the President's exercise of the pardon power, and the reasons for their failure.

In Part IV, I set forth my proposed reform: instead of acting according to regulations promulgated by the executive branch, the Office of the Pardon Attorney should act in accordance with Congressional legislation. I first describe the proposed legislation and highlight the similarities and differences between it and the current regulations. I then discuss the constitutionality of the proposed legislation under the Morrison v. Olson balancing test and oversight power jurisprudence. Through this legislation, Congress has the opportunity to insert itself into the pardon process and create an additional check on presidential discretion while still respecting the power as exclusively reserved to the President.

1. GENERAL OVERVIEW OF THE PARDON POWER IN AMERICAN HISTORY

   1. History of the Pardon Power

      We were warned, as early as Sir William Blackstone, that pardoning is not appropriate in a democracy. Blackstone wrote,

      This [pardoning] is indeed one of the great advantages of a monarchy in general, above any other form of government; .... In democracies, however, this power of pardon can never subsist; for there nothing higher is acknowledged than the magistrate who administers the laws: and it would be impolitic for the power of judging and of pardoning to center in one and the same person. (6) And yet, despite being forewarned, the Framers emphatically supported inclusion of a pardon power clause in the Constitution that resembled the power as it existed in England and colonial America. (7)

      Because the issue was not whether to include the power in the Constitution, the debates centered around who should have the power and what limits, if any, should be imposed on the power. (8) The biggest question was whether Congress should be involved in the exercise of the power, or whether the power should be reserved for the President. The first draft of the Pardon Clause vested the power in the executive only. (9) Roger Sherman proposed to amend the Pardon Clause to read, "He shall have the power to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate," but his suggestion was shut down by a vote of eight to one. (10)

      Later at the convention, the representatives again debated the who issue, particularly in the context of pardons for treason. (11) Some representatives worried that the President may be involved in a treasonous act so the power should be left to Congress or at least require an association between the two, (12) others worried that sharing the power might result in an abuse of power, (13) and still others felt that Congress was not equipped to grant pardons. (14) In the end, those who supported Congressional involvement, even in the limited case of treason, did not garner enough support, and the power remained with the executive.

      The Federalist Papers also addressed the critical decision to exclude Congress from the Pardon Clause. In The Federalist No. 74, Alexander Hamilton argued that vesting such an important power in one person would "inspire scrupulousness and caution," while giving the power to a group increases the likelihood that "they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency." (15) With regard to Congress's role in pardons for treason, Hamilton understood why people suggested concurrence between the branches, but he concluded that it was imperative to leave the power to the President alone; "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," and if the President had to wait for Congressional approval, it "would frequently be the occasion of letting slip the golden opportunity." (16) Hamilton's hope that one man would be more careful in dispensing the power is credible, yet history has continued to show otherwise.

      Also at issue in the debates was whether to limit the exercise of the power. The pardon power was intended to serve as an instrument of clemency and a vehicle to pursue more strategic public concerns. (17) James Iredell explained that the President's "duty [is] to watch over the public safety;" and, like other Framers, he saw the pardon power as a vehicle to exercise this duty. (18) For example, the President needed to be able to grant pardons to accomplices to secure the conviction of another man, and the President needed to be able to send a spy to procure knowledge about an enemy and upon returning to the country, pardon this man for treason. (19) And most significantly, the President needed to possess the power to grant pardons in "seasons of insurrection and rebellion" in order to restore tranquility to the public. (20) The President's need to execute the pardon power for strategic purposes outweighed the concerns that the President should not be able to grant pardons in cases of treason because the President himself may have been treasonous. (21) The only textual limitation that was included in the Constitution was that the President could not grant pardons in cases of impeachment, a limitation that was almost assumed at the outset. (22)

      Although the Framers of our Constitution ultimately vested the power in the President alone, it was not without a contentious debate as to the role of Congress, and a discussion regarding the limited purpose of the power; the Founders intended the power to be used pragmatically, to grant clemency in exceptional cases and to protect the country during times of war and insurrection. (23) Modern Presidents, however, seem to have exceeded this intended scope of the power, granting pardons not only for these limited reasons, but also for political and personal motives. (24)

   2. Overview of the Purpose and Use of the Power

      Against the backdrop of the Framers' views regarding the pardon power, the Supreme Court has held that the power is a "benign prerogative" reserved to the President, and that it is a broad grant of discretion, unfettered by Congress or the courts. (25) Many commentators continue to expound on the Supreme Court's interpretation and assert that the President's pardon power is inviolate; scholars have emphatically claimed that the pardon power is absolute and that any Congressional effort to bind the President in the exercise of the power would be nearly impossible to enact. (26)

      There are only four limits on the pardon power: (1) the pardoned acts must be offenses against the United States, (2) a President may not grant...