The Pardon Paradox: Lessons of Clinton s Last Pardons

• Author: Margaret Colgate Love
• Position: Of Counsel, Asbill Moffitt & Boss, Chtd.
• Pages: 185-218

Page 185

Margaret Colgate Love: I am grateful to Susan Martyn and George Lardner for their thought-provoking and helpful comments on an earlier draft of this article. Many of the opinions and much of the background information are the product of my service as Pardon Attorney in the Justice Department from 1990 to 1997.

It is hard to make sense out of the pardons Bill Clinton granted on his last day in office. At the time, they were almost universally condemned as an abuse of executive power, embarrassing the President's friends and confounding his enemies. They were also trivialized, spoken of in the same breath as the Clintons' solicitation of parting gifts and supposed efforts to make off with White House furniture.¹ They have been dismissed by subsequent commentators as "a final self-indulgence, a total loss of control," by a man accustomed to living on the edge.² They seem to embody all the contradictions and shortcomings of Bill Clinton's political character.

More generally, the final Clinton pardons confirm the popular view of the pardon power as a remnant of tribal kingship, rather than an integral part of our constitutional scheme.³ The fact that so few legal scholars Page 186 have chosen to write about them speaks volumes about how seriously the pardon power is taken as an instrument of government, even in the academy.

But seen in historical perspective, and taken seriously, the final Clinton pardons offer important insights into why an executive power that once played an integral operational role in the justice system has in recent years become "a living fossil."⁴ As an object lesson in how even well- intentioned pardoning can go horribly wrong, they offer a way back to a more functional role for pardon in the federal system.⁵

In seeking useful lessons from the final Clinton pardons, this essay focuses not so much on the merits of particular grants as on the process that produced them. Comparing two of the final grants that ostensibly came to Clinton's attention by very different routes, it shows that there are certain pardoning ground rules that any president ignores at his peril. Thus, the universally negative reaction to the final Clinton pardons can be explained in terms of a paradox: the constitutional power to pardon is not subject to regulation or claim of entitlement, but as a practical matter it cannot be exercised except pursuant to a process that is perceived as accessible and fair.

Note that I said the process must be "perceived" as accessible and fair, not that it must always necessarily be so. The point is not so much that a flawed decision-making process tends to produce bad decisions, though that is surely the case. Rather, it is that, in pardoning, an apparently sound Page 187 decision-making process tends to produce politically acceptable decisions.⁶If people trust the process by which pardons are granted, they will have confidence in the grants themselves. Conversely, if people think that the pardon process is somehow rigged, they will be suspicious of any grants made pursuant to it. If the breakdown of a trustworthy pardon process during the Clinton Administration made poor decisions more likely, it virtually guaranteed that the public would be prepared to believe the worst about them.

The two commutation cases discussed in Part III of this article illustrate the importance of appearances in pardoning. While their relative merits might seem evident to many observers, the most important difference between them is the process that produced them. Kim Willis' commutation appeared to be the product of an established and accessible administrative routine; Carlos Vignali's commutation, the other hand, appeared to be the product of influence-peddling. The way each case came to the President's attention made all the difference in how his decisions were received at the time, and how they have later come to be judged.

I Regulation of the Unruly Power

The President's constitutional power to pardon allows him to free people convicted of federal crimes from any and all legal penalties imposed as a result of their convictions, guided only by his social conscience and political instincts. The "benign prerogative of pardoning" is an awesome responsibility, and the Framers saw it as having very specific public purposes.⁷ They entrusted the pardon power to the President's sole discretion: Congress cannot limit it, the courts generally Page 188 cannot review it, and individuals are not entitled to it.⁸ Pardon is not constrained by principles of fairness in the same way that justice is, because it is entirely voluntary and because, as an expression of the will of the community, it has a political dimension.⁹ The President can be held accountable for his use of the power only in the court of public opinion.¹⁰

But popularity can be a powerful disincentive to pardoning, especially when the public cares a lot about crime and the President cares a lot about his approval rating. So most presidents have appreciated that their ability to use the pardon power depends upon gaining the public's confidence, not just in particular pardons, but in the practice of pardoning itself. People are most likely to be persuaded that a particular pardon is in the public interest if they trust the process by which it was produced. The converse is also true: if a pardon is not perceived to be fairly awarded, pursuant to comprehensible criteria and an accessible process, it is likely to be regarded with suspicion and cynicism.¹¹ Like any other product in the marketplace, pardons have to be regulated before people will buy them. In Page 189 fact, this is not simply a marketing issue: undisciplined and random production methods are not likely to produce a dependable product.

Until Bill Clinton, presidents understood that the best way to gain acceptance for their use of the pardon power was to submit their unruly discretion to a disciplined decision-making process, a process "tied to the consistent application of principles rather than whim, lobbying, or bias."¹²They appreciated the need to keep some distance between themselves and those responsible for administering that process, both to underscore its integrity and to avoid temptation. They also discovered the benefits of giving a key advisory role to a political appointee with an independent institutional stake in the outcome of the process. Finally, they found that a policy of frequent and generous pardoning was more likely to secure their power than a policy of caution: a few problematic grants can more safely be salted among many unexceptionable ones.

In the early years of the Republic, Presidents sought the advice of various Cabinet members in granting pardons, relying as well upon the views of the prosecutor and sentencing judge in particular cases.¹³ Shortly after the Civil War, the President committed himself to a more regular process by which pardon cases came to him only after being investigated by the Attorney General, and grants were made only upon the Attorney General's advice.¹⁴ In regulations first promulgated by the Attorney General and signed by the President in 1898, all applicants for pardon or commutation of sentence were required to file a petition for clemency with Page 190 the Pardon Attorney at the Justice Department.¹⁵ The Pardon Attorney investigated each application, sought the views of interested officials, and prepared a report and recommendation for the signature of the Attorney General (or his designee), which in turn was sent to the President for his disposition.¹⁶ Substantive criteria for granting pardon or commutation were not spelled out in any official document, and the President rarely discussed either his clemency policy or his reasons for a particular grant.¹⁷ Page 191

At the outset of the Clinton Administration, this system for processing clemency applications had been continuously in use for over 100 years. Under the Attorney General's guiding hand, frequent and regular pardoning had introduced a measure of flexibility into an otherwise rigid legal system, and the power had been generally accessible to those without political connections.¹⁸ Almost every year between 1900 and 1980 there were over a hundred grants of pardon and commutation, most of them to ordinary individuals convicted of unremarkable crimes. Pardon warrants were signed at regular intervals by the President four or five times a year, and there was no particular bunching of grants at the end of an administration. Sheer volume protected the President's ability to make an occasional grant for personal or political reasons that the public might otherwise not understand.¹⁹ In this fashion, pardon continued for many years to play an integral part in the regular functioning of the federal criminal justice system.

Prior to the Clinton administration, the White House consistently relied upon the Justice Department's administrative process, even after the instance of ordinary pardoning began to decline during the administration of President Reagan.²⁰ And, while there was an occasional controversial Page 192 grant, the only federal pardon-related scandals during the 20^th century involved the rare cases that were staffed outside of the normal Justice Department review process.²¹ "It was the regularity of the Justice Department's investigations and the reliability of the Attorney General's recommendations that kept the pardon process from being cynically viewed as a lottery, and that protected the President's ability to exercise his discretion as he thought best for almost two hundred years."²²

Yet the seeds of the breakdown of the pardon advisory process in the Clinton Administration had been planted in the Carter Administration...