On Pardons, Framers Had Wars in Mind

The president’s power to pardon federal criminals is one of the few absolutes in the law.

The chief executive is free to use or abuse this authority and cannot be checked by Congress or the courts. What were the authors of the Constitution thinking? Apparently, about wars and rebellions.

“They wanted the president to be free to go, at a moment’s notice, to say to the rebels: ‘Lay down your arms and I will be merciful,’ ” said Yale law professor Akhil Amar, an expert on constitutional history.

A few months before the Constitutional Convention of 1787, western Massachusetts had been wracked by a tax rebellion led by a veteran of the Revolutionary War named Daniel Shays.

In Philadelphia, Alexander Hamilton spoke of the need for a strong commander in chief to cope with such threats. He proposed various powers for the new president, including the authority to grant instant pardons.

Later, Hamilton explained his thinking in the Federalist Papers. “The principal argument for reposing the power of pardoning in the chief magistrate is this: 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 tranquillity of the commonwealth.” If the president must first go through Congress or the courts, the “golden opportunity” might pass, he said.

Hamilton also had an idealized image of the president. He described him as “a single man of prudence and good sense.”

Not everyone shared his confidence.

Virginian George Mason refused to sign the Constitution in part because it gave an unchecked pardon power to the president. He suspected that a future president might conspire with those whom he had “secretly instigated to commit crimes” and then prevent “a discovery of his own guilt” by pardoning the criminals.

But Hamilton’s proposal prevailed. Article II, Section 2, of the Constitution says that the president “shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Of course, when the new government began, there were few “offenses against the United States” or federal crimes on the books. Most crimes were prosecuted by the states.

George Washington used the power for the first time to pardon the leaders of the “Whiskey Rebellion,” the group of western Pennsylvanians who refused to pay taxes on spirits.

But the pardon power often came with controversy. Three years after the Civil War ended, President Andrew Johnson gave a “universal amnesty and pardon” to the Confederate soldiers who fought against the Union. He said that this general forgiveness would help “secure permanent peace, order and prosperity throughout the land.”

But Northern Republicans suspected that Johnson was trying to build a political base for himself by restoring the voting power of white Southerners. They cited his abuse of the pardon power as one of the articles of impeachment against him. (Johnson was narrowly acquitted in the Senate.)

A second divisive war led to another general pardon. In 1977, President Carter pardoned those who had evaded military service during the Vietnam War.

The authors of the Constitution saw the threat of impeachment or political defeat as the main checks on the president’s abuse of pardons.

When President Ford was defeated in the 1976 election, many experts attributed his narrow loss to his pardon of the man whose resignation made him president: Richard Nixon.

But a lame-duck president has no such fears.

On Christmas Eve 1992, after he had been defeated for reelection, President Bush pardoned several of those who had been charged in the Iran-Contra scandal, including Caspar W. Weinberger. The former Defense secretary had been indicted and was facing trial for allegedly lying about his knowledge of secret arms shipments to Iran.

Through most of his term, President Clinton granted few pardons. That changed, however, on his final day in office, when he pardoned 140 people.

Most constitutional experts said that Congress and the courts have no authority either to limit the president’s pardon power or to punish a former president for abusing the authority.

In 1891, Congress set up an Office of the Pardon Attorney in the Justice Department to review pleas for clemency. The pardon attorney then recommends whether the president should grant clemency.

But the president cannot be required to follow this procedure.

“This was meant to be a discretionary power, like a grant of mercy,” said Harvard law professor Laurence H. Tribe.

Clinton’s last-minute pardon of fugitive commodities broker Marc Rich “certainly looks like an act of terrible judgment. The whole thing has the smell and the appearance of pardons for sale to the highest bidder,” Tribe said.

Congress has often complained about a president’s exercise of his pardon authority and, as with other exclusive presidential powers, tried to limit it. After Nixon was pardoned, then-Sen. Walter F. Mondale (D-Minn.) proposed a constitutional amendment that would have given Congress the power to overturn pardons it did not like. His effort went nowhere. Now, in the wake of the Rich pardon, Sen. Arlen Specter (R-Pa.) is considering offering a similar amendment.

Of course, congressional leaders can also call hearings, as they did this week and will do again next week, and heap scorn on a departed president.

“That’s about the only thing they can do. Hit him where it hurts--in the legacy,” Amar said.