The law: presidential misuse of the pardon power.

Author:Crouch, Jeffrey

The purpose of this article is to explore why the presidential pardon power has been invoked by our last three presidents not merely for the traditional reasons of showing mercy or ensuring justice, but also in circumstances where the president may have enjoyed a personal benefit from exercising executive clemency. Presidents George H.W. Bush, Bill Clinton, and George W. Bush each used clemency in inappropriate ways: either to help their own executive branch officials and possibly themselves to avoid judicial prosecution (Bush 1 and 2), or to excuse financial contributors and aides that, as the president himself, had been subjects of aggressive independent counsel investigations (Clinton).

These controversial clemency actions of the last three presidents are an unfortunate legacy of the independent counsel statute, which lapsed in 1999. As will be shown, nearly every pre-Watergate president who had endured a special counsel investigation avoided using the clemency power to excuse executive branch officials from their crimes, especially in circumstances where the president's own involvement was unclear. The restraint showed by these past presidents is consistent with the framers' intentions that the clemency power be used either as a kingly "act of grace," or for "the public welfare"--not to excuse the president's men.

The three recent presidents mentioned above may represent a disturbing new trend where a modern chief executive feels free to excuse his close associates in circumstances where his administration may be involved in wrongdoing, or to reward political donors. Using the clemency power to protect one's aides or help one's benefactors marks a misuse of the presidential pardon power.

Brief History

The presidential clemency power found in Article II of the Constitution vests in the president the ability to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The American clemency power was based on the British king's power to excuse offenses. In Great Britain, where an absolute monarch reigned virtually unchecked, the pardon power was often "abused for personal gain," according to political scientist David Gray Adler (Adler 1989, 213). He notes, "the king frequently used pardons as partisan indulgences for friends and supporters" (ibid., 209). In fact, "pardons frequently [were] sold" by Edward II (ibid., 227). Kings used clemency to consolidate power, concluding that mercy endears a king to his subject (Kobil 1991, 586). Despite their fear of tyranny, the American framers nevertheless added to the Constitution a very potent clemency power. They followed the British idea of vesting a clemency power in one person by awarding it to the chief executive or "president" in the Constitution, although many remained suspicious of a strong executive (ibid., 589-590).

The most famous defender of a broad pardon power among the framers was probably Alexander Hamilton, who contended in Federalist No. 74 that without "the benign prerogative of pardoning ... justice would wear a countenance too sanguinary and cruel" (Hamilton, Madison and Jay 1999, 415). Vesting the pardon power in the president was the best decision because "the sense of responsibility is always strongest in proportion as it is undivided" (ibid., 415-416). In unsettled times characterized by "insurrection or rebellion," a "well-timed offer of pardon ... may restore the tranquility of the commonwealth"; practically speaking, a single person would be better equipped than a group to make such quick and difficult decisions (ibid., 417).

Consistent with Hamilton's reasoning, the framers created this powerful prerogative despite the danger presented by a chief executive possibly forgiving treason by his own associates. Virginia delegate George Mason warned that the president might use the pardon power to derail investigations into unseemly executive behavior (Adler 1989, 221). Indeed, this was a general concern of the Anti-Federalists (Ellis 1999, 221-222; Storing 1981, 67, 142, 151, 348).

In Federalist No. 69, Hamilton attempted to quell these concerns, arguing that the Constitution provided adequate protection to allow the president of the United States to pardon in virtually any circumstances "except in cases of impeachment," because-despite the wide reach of the clemency power--the president would always be subject to impeachment if he ever acted improperly, even if he pardoned treasonous allies (Hamilton, Madison and Jay 1999, 386-387).

The question presented here is whether the framers' decision to vest the pardon power in the President of the United States has backfired. Have the Anti-Federalist fears of presidents pardoning to cover up their own--or their supporters'--offenses been realized?

Legal Rationale and Early Use

In the first Supreme Court case which considered the presidential pardon power, United States v. Wilson, Chief Justice John Marshall--in a unanimous decision--likened the American pardon power to that of the British king, in that "A pardon is an act of grace.... It is the private, though official, act of the executive magistrate ..." (United States v. Wilson 1833, 160). Nearly 100 years later, an 8-0 decision by the Court in Biddle v. Perovich yielded another, starkly opposite rationale for the American clemency power. According to Justice Oliver Wendell Holmes, "A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed" (Biddle v. Perovich 1927, 486).

Scholars today argue about which rationale is correct, but there is evidence for both sides. Former president William Howard Taft noted in 1925 that pardoning is one of the "most difficult" duties that the president has to perform: "The only rule he can follow is that he shall not exercise it against the public interest" (Taft 1925, 121). Still, the other rationale remains. As pointed out recently by former pardon attorney Roger Adams, the decision to pardon is "all a matter of grace" (Cannon and Byrd 2000, 776).

The first president to use the pardon power, George Washington, showed mercy toward the Whiskey Rebels, illustrating his sensitivity to justice and the public interest and providing a precedent for his successors. President Washington defused the Pennsylvania Whiskey Rebellion in 1794, then later exercised the pardon power on July 10, 1795, to excuse those rebels who agreed to swear their allegiance to the United States (Richardson 1896, 181). Of the fewer than 100 rebels brought to justice, only about 20 actually stood trial. Two of these defendants, John Mitchell and Philip Vigol, were found guilty of treason against the government and sentenced to hang (see United States v. Vigol 1795, and United States v. Mitchell 1795). However, Washington decided to pardon the two, citing in their pardon warrant the facts that the Rebellion had been extinguished and that "the principal and end of human punishment [is] the reformation of others" (Washington 1795).

Washington further explained his rationale for the clemency decisions to Congress in his Seventh Annual Address on December 8, 1795. Because "the misled have abandoned their errors," Washington felt it appropriate "to pardon generally the offenders here referred to, and to extend forgiveness to those who had been adjudged to capital punishment" (Richardson 1896, 184). What is more, he noted that the pardons were motivated both by concerns of mercy and the public interest:

I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit (ibid.). Throughout most of American history, presidents have adopted these dual rationales. They have also...

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