Don’t Tread on the Pardon Power

The controversy swirling around Bill Clinton’s pardons has raised questions about the wisdom of giving any president so much power to commute sentences, forgive criminal actions and shield accused law-breakers from prosecution. There is even a call for a constitutional amendment that would remove such uninhibited power from a president’s hands.

The controversy raises three questions. Why, at a time when the post-revolutionary generation was so eager to constrain executives from mischief, did the founding fathers give a president such an extraordinary grant of power? Are Clinton’s pardons so different from other presidents’? Finally, if so, have his actions been so abusive of the pardon authority that we now need a fundamental alteration in the executive office’s freedom to exercise this power?

The nation’s founders believed that miscarriages of justice, of which they had seen numerous examples under the British crown, dictated that the power to pardon be embedded in the Constitution. “Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed,” Alexander Hamilton wrote in defense of the pardon.

But why give the executive and not the legislative branch this exclusive authority? Because the founders also believed that “a single man of prudence and good sense” was better fitted to perform this function “than any numerous body whatever.”

We must ask if presidents prior to Clinton exercised “prudence and good sense” in granting pardons. The answer is, generally, yes.

Through much of our early history, presidents pardoned groups of wrongdoers rather than individuals. George Washington pardoned the Whiskey rebels and John Adams the Fries rebels. James Madison granted amnesty to a group of pirates. Abraham Lincoln gave forgiveness to Confederate rebels who met certain conditions. Theodore Roosevelt pardoned Emilio Aguinaldo and several other Filipino rebels. Harry Truman provided amnesty to 9,000 peacetime military deserters, and Gerald Ford gave amnesty selectively, as Jimmy Carter did generally, to Vietnam War draft evaders.

Individual pardons were, more often than not, the product of presidential compassion. Warren G. Harding’s pardon of Eugene V. Debs, the head of the radical International Workers of the World, for sedition during World War I is a fine case in point. It remedied the abuse of Debs’ freedom to oppose the war.

Recently, presidential pardons have come under attack for being self-serving political acts rather than decisions based on considerations of justice and/or mercy. Richard M. Nixon’s pardon of Teamster’s boss Jimmy Hoffa was criticized as a blatant attempt to win political favor with his union; Ford’s blanket pardon of Nixon for Watergate crimes was attacked--I believe unjustly--as the product of a corrupt political bargain. And former President George Bush’s forgiveness of Defense Secretary Casper Weinberger for alleged Iran-contra wrongdoing provoked complaints of a political cover-up to protect Bush from revelations about his own role in the affair.

Clinton’s midnight pardons have evoked a different set of objections. Critics say that he was less intent on fixing abuses in the justice system or showing compassion for people sentenced to excessive penalties than in serving the financial interests of himself, Hillary Clinton and her brother.

But Clinton is not the first president accused of selling pardons. Andrew Johnson came under congressional investigation for such wrongdoing, although nothing was ever proven. It seems highly unlikely that Clinton will suffer a different fate. The investigations that will surely go forward now about his handling of his last-minute pardons seem unlikely to turn up compelling evidence of clear-cut presidential abuses.

Is there a case here for amending the Constitution? Not really. Even if congressional investigators or federal prosecutors could demonstrate criminal behavior on Clinton’s part, it is a poor idea to eliminate the president’s pardoning power.

By and large, presidents have acted honorably and wisely in using that authority. One alleged scandal should not be a basis for undoing what has generally served the cause of justice and mercy throughout our history.