Made Key Concession : Hammer Pardon Turned on the Issue of Innocence

Two weeks ago, in his first exercise of that most royal of all presidential prerogatives, George Bush conferred “full and unconditional” pardons on nine Americans with criminal records.

Eight were felons, convicted of everything from tax evasion and illegal possession of firearms to fraudulent land grabs and kickback schemes. They were more than happy to admit, and lavishly repent, their crimes in exchange for the restoration of their civil rights. One, for example, a security guard, won back his right to tote a gun.

For these eight, the presidential pardons process had been relatively straightforward, inexpensive and benign. Most simply filled out a free, four-page Justice Department form, provided character references, then went home to wait it out while the FBI sifted through their lives.

But for the ninth, Los Angeles industrialist and philanthropist Dr. Armand Hammer, the experience had been a long and frustrating ordeal. He was 91 years old and no felon. He had never lost his civil rights. Instead, he had been trying to rid his record of three 13-year-old misdemeanors. And he wasn’t lavishly repenting anything.

In the end, despite Hammer’s protestations of innocence, his pardon read the same as all the others. And he wouldn’t have gotten even that had he not made a key concession.

The case of Hammer’s pardon for making $54,000 in illegal contributions to Richard M. Nixon’s 1972 campaign is a classic reminder that, when it comes to pardons, the system does not bend unless the President says so. The pardoning power, an utterly discretionary bit of imperial largess written into the Constitution amid the checks and balances, belongs to him alone.

Some, like Jimmy Carter--who pardoned World War II traitor Iva (Tokyo Rose) Toguri and, posthumously, Dr. Samuel A. Mudd, who treated President Abraham Lincoln’s assassin--are relatively generous with that largess. Others, like Ronald Reagan--who awarded Hammer a National Medal for the Arts and made him chairman of the President’s Cancer Panel but did not pardon him--are less forgiving.

In Hammer’s case, say officials of the Reagan and Bush administrations, the pardon was stalled not by presidential indifference but by the nature of the request itself--and Hammer’s refusal to change it.

For what Hammer had been seeking--but didn’t get--was not just a garden-variety presidential pardon but one based on a finding of innocence--in effect, an executive decree that he was never guilty in the first place.

Virtually Unheard Of

Such a pardon is virtually unheard of, so unprecedented that Hammer’s own attorneys cite only two examples of it in the last 50 years and U.S. Pardons Atty. David C. Stephenson, a 20-year veteran of the office, says he can’t recall details of either case.

But, the officials say, it explains why George Bush acted when Ronald Reagan would not--even though Reagan, in his last days in office, pardoned New York Yankees owner George Steinbrenner on felony charges of making illegal contributions to the same Nixon campaign.

“Steinbrenner,” notes a Bush White House legal official, “was willing to accept an ordinary pardon.”

Armand Hammer did not back down easily. He is a man, as one of his friends says, “who is unaccustomed to taking no for an answer” or, as a critic says, whose “chutzpah knows no bounds.”

Hammer, Occidental Petroleum founder, art patron and self-styled emissary of East-West relations, has been protesting his innocence almost since the day he entered a guilty plea in 1975 and then again in 1976. His determination to “clear my name” has been so well publicized that, by now, it is as central to Hammer’s image as his search for a cure for cancer and his 45-minute meeting 72 years ago with V. I. Lenin.

Charity Donations

Associates say one reason for Hammer’s obsession is that he has long been convinced that the misdemeanors account for his failure to win a Nobel prize, despite nominations. Over the years, he has contributed millions of dollars to medical research, to the arts, education and countless other worthy causes the world over.

“Dr. Hammer is a totally selfless man, the kind of man who is too good for most people to believe,” says his Philadelphia attorney, Bruce W. Kauffman. “He contributes at least 90% of his income to service of mankind. I’m just so grateful to President Bush, that he acted so responsibly, so humanely, so well, with such statesmanship.”

Kauffman has been one of Hammer’s leading attorneys since he plunged into the formal pardons process in 1984. Kauffman had once been appointed by Bush’s attorney general, former Pennsylvania Gov. Dick Thornburgh, to fill a two-year vacancy on the Pennsylvania Supreme Court, leading to speculation that the connection might have given Hammer’s petition a new boost.

But like any other supplicant, Hammer filed an application and letters of character reference--along with a thick, slick legal brief arguing his case--with Pardons Atty. Stephenson, a little-known public official who controls the first phase of the process.

With around 300 requests annually, it is up to Stephenson to make the first cut. The only real rules are that you show remorse and demonstrate an exemplary life style for at least five years after the crime--and then submit to a background investigation by the FBI.

This is, of course, expensive. And because it costs the government thousands of dollars to process each petition, misdemeanor offenses are almost routinely rejected as too trivial to bother with. Stephenson made an exception for Hammer, he says, “because of his outstanding record of service to mankind.”

Repeated Defense

In his interviews with Stephenson, Hammer repeated a defense he has made in his autobiographies, through his lawyers and in interviews through the years. (Hammer would not comment for this article.)

He insists that he made the 1972 contribution in good faith, before a new campaign disclosure law went into effect. He blames his courier, former Montana Gov. Tim Babcock, who pleaded guilty to a related charge, for misdirecting the money and then lying about it. And he says the only reason he entered a guilty plea was because his lawyers pressured him into it.

In fact, only days after admitting guilt in a plea bargain in U.S. District Court in Washington in 1975, Hammer lamented his innocence to his parole officer. When the presiding judge heard about it, he ordered Hammer back into court. Hammer fell ill, proceedings were moved to Los Angeles due to his health and, five months later, accompanied by an army of doctors, he was wheeled into court and pleaded guilty a second time. He was sentenced to a year’s probation and fined $3,000.

Hammer has since insisted that he uncovered “new evidence” that exonerates him. He points in particular to a snatch of taped conversation with Nixon prior to the campaign deadline, in which Hammer mentions his contribution. Hammer also says $39,000 of his money was never even applied to the campaign, so it technically was not even a campaign contribution. And, finally, he contends he was a victim of a double standard applied by Watergate prosectors in interpreting the laws.

Stephenson was persuaded. Although he will not publicly confirm it, his superiors say he recommended in favor of Hammer’s extraordinary request.

But Stephenson is only the first stop on the way to the White House. From his office, pardon petitions are reviewed by the associate attorney general (then Stephen S. Trott, now a judge on the U.S. 9th Circuit Court of Appeals) and sometimes by the attorney general himself (then Edwin Meese III) before being sent to White House counsel and finally to the President.

Formally, Hammer’s petition never made it past the second stop.

Called ‘Incredible’

“It was incredible,” recalls a former Justice Department official from the Reagan years. “We were ready to give him a pardon on regular grounds--for showing remorse, leading an exemplary life, all that. We were unanimous in our opinion that he deserved that.

“But Hammer said no, he didn’t want that. He wanted the U.S. government to declare him innocent, and there was simply no evidence to support that . . . . He appealed it to Meese, to everybody under the sun.”

Another former top-level official in the Reagan Justice Department contends that, “in all fairness,” Hammer never should have been convicted. “But we decided there really were no new grounds for an innocence pardon, no dramatic new evidence,” he said. “Besides, you just can’t resolve legal issues in a pardon. That isn’t their purpose. They are statements of forgiveness.”

(In fact, history is studded with examples of people who actually rejected a pardon rather than concede guilt.)

That was in 1987. By then, Hammer’s formal petition had been in the system for three years--which is not unusual. It takes at least that long for ordinary applications, mainly because of the time-consuming background investigations. At present, Stephenson has a backlog of about 700 petitions.

But Armand Hammer wasn’t getting any younger. Traditional Christmas pardons were announced, random lists were released now and then, birthdays came and went. Armand Hammer called his attorneys constantly for news, one day from Moscow, from Afghanistan the next, from London, Beijing, Los Angeles.

His attorneys made emotional pleas for the pardon based on his age. “We had so hoped,” says Kauffman, “that Reagan would grant him the pardon in time for his 90th birthday.”

Fired Attorney

In his increasing displeasure, Hammer fired his Washington attorney, a former Justice Department official himself, on grounds that he should have managed, with his firsthand knowledge of the process and the players, to produce better results. But Hammer’s old friend Kauffman and his colleague, Paul S. Diamond, couldn’t make it happen either.

Finally, in May, Hammer sent a three-paragraph letter to Deputy Associate Atty. Gen. Cary H. Copeland. “I am herewith changing my request for a pardon based on innocence to one seeking a conventional pardon,” he wrote.

Three months later, Bush gave it to him.

To Hammer’s attorneys, it remains a shame that such a distinguished man should have been subjected to the grinding pardons process in the first place. Earlier this year, for example, Justice Department security guards refused to admit Hammer into the building because he had no picture identification.

“They made us sit in the lobby for 15 minutes until somebody came for us,” recalls Diamond. “I mean, what did they think this 90-year-old man was going to do? But Dr. Hammer was good-natured about it.” Diamond calls the pardons process “a great leveler.”

Historically, most presidents have used the pardon power sparingly, even in high-profile petitions. According to Stephenson, almost 90% of routine requests are rejected.

Lyndon B. Johnson was the most generous President in the last 30 years, issuing 1,241 in five years. Nixon doled out 863 in six years, Gerald R. Ford 382 in two (including his controversial preemptive pardon of Nixon). Excluding his blanket amnesty to Vietnam draft resisters, Carter gave out 543 in his one term.

The stingiest was Ronald Reagan, who granted only 393 pardons during his eight years in office. (Not that Reagan was shy about using the pardon when his sense of injustice was aroused. He had barely unpacked at the White House before he issued unsolicited pardons to two FBI agents convicted of illegal break-ins during the early 1970s at the homes of families and friends of suspected members of the radical Weather Underground. Reagan said the agents had acted not with “criminal intent” but on “high principle” to fight terrorism.)

But those involved in Hammer’s original guilty plea say, if anything, he got better treatment that the average petitioner.

“He shouldn’t have been treated any differently than thousands of other white-collar criminals,” says former assistant Watergate prosecutor Thomas McBride, now at Stanford Law School. “There were no new, extenuating circumstances in his case. Even his (charitable) giving has always been tainted by self-interest.”

“He pleaded guilty, so I have to assume he was guilty,” says former Watergate prosecutor Henry Ruth. “My view of the pardon process is that it should be given only in extraordinary circumstances, and I haven’t heard of any in either Hammer’s or Steinbrenner’s cases. But they happen to be rich, powerful people, so I guess that’s why they get them.”

Although it is standard procedure for prosecutors and judges to be consulted before pardons are granted, Ruth was not, nor was federal Judge Lawrence Lydick. Charles Ruff, the final prosecutor in Hammer’s case and now a Tucson attorney, was consulted but, sources say, would neither oppose nor support any kind of pardon.

The day of his pardon, Hammer issued a statement expressing his gratitude for “President Bush’s action in clearing my name.” Beyond that, he refused public comment. His attorneys are less restrained.

“You see, an ordinary pardon requires that you admit guilt and show remorse,” Kauffman said. “And Dr. Hammer has certainly never done that. He is innocent, and he has not admitted he did anything wrong. So this is a sort of hybrid pardon, somewhere in the middle.”

As for the May letter, Kauffman says: “We just decided not to get hung up on words, on the innocence thing. A pardon is a pardon.”

Kauffman’s partner, Diamond, was even more effusive.

“Listen, this is a singular event in U.S. pardon history,” he crows. “You look at those applications. Everybody else pardoned has to admit guilt, say they’re sorry in no uncertain terms. And we didn’t. He didn’t. Just look at that letter he wrote, he doesn’t say he’s sorry he violated any law. He says he’s sorry that it was perceived as a violation of the law. This is a complete victory as far as I’m concerned.”

In his May letter, Hammer contended that he would not have pleaded guilty “but for a series of extenuating circumstances.” He added:

“I understand that in the eyes of the law I now stand convicted of three misdemeanor offenses. I have a profound respect for the law of the United States and have always scrupulously sought to conform my conduct to those laws in all respects. I sincerely regret that my record appears otherwise, even in some technical aspect.”

The Bush White House sees it otherwise. “The President has accepted Armand Hammer’s acknowledgment of guilt, and his years of service to the community. And it was made very very clear to Dr. Hammer that he had to express remorse,” says the White House legal official. “Oh, he tried to do it in an ambiguous way, of course, sort of cutesy. But he did it.”