FORUM

William G. Ross
Cumberland School of Law, Samford University
JURIST Contributing Editor

The President...shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

– Article II, Section 2 of the U.S. Constitution.

Expressing frustration over the limitations of presidential power, Lyndon Johnson reportedly once said “the only real power I have is nuclear and I can’t use that.” Johnson’s lament overlooked his pardon power. Commencement of military action and the granting of pardons are virtually the only powers that the President can exercise without any countervailing congressional or judicial checks. As the Supreme Court explained in an 1866 decision, the President’s pardon power “is not subject to any legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.” Although pardons are less destructive than war, a furor over their plenary character flares up whenever the President makes unpopular pardons.

President Clinton’s controversial last-minute pardons have renewed the controversy about the role of pardons, an issue that last attracted widespread attention when President George Bush outraged many Americans by pardoning leading figures in the Iran-Contra scandal during his final month in office. Controversies over high-profile pardons are inevitable since the very nature of a presidential pardon permits the President to exercise a high degree of discretion about a subject about which reasonable persons might differ.

But while the pardon power is perennially controversial, it is quite durable. Elimination of the pardon power clearly would require a constitutional amendment. Although legislation or judicial action theoretically might remove the President’s power to pardon persons who have not been convicted of a crime, the established line of judicial authority in support of this power indicates that its elimination likewise would require an amendment.

Tampering with the pardon power would be unwise because pardons serve several useful purposes.

First, pardons help to ameliorate the harshness of the justice system by recognizing mitigating factors of which judges may not take cognizance. In the words of Alexander Hamilton in Number 74 of The Federalist, they prevent justice from wearing “a countenance too sanguinary and cruel.” As Chief Justice John Marshall explained in an 1833 Supreme Court decision, a presidential pardon “is an act of grace.” While this discretion may seem like an anachronistic vestige of monarchical arbitrariness, the pardon power permits the President to temper justice with mercy, a quality that should not be wholly absent even in a system that is governed by laws rather than men.

The pardon power likewise acts as a constitutional safety valve to prevent miscarriages of justice that might occur in the judicial system, notwithstanding procedural safeguards. Although some critics of the pardon power have argued that it unduly interferes with a criminal justice system that theoretically accords due process to all citizens and that judges are more qualified than is the President to assess criminal penalties, the addition of an extra layer of review of such penalties helps to enhance the due process rights of all citizens.

Moreover, pardons can help to promote national reconciliation in the wake of wrenching political division. As Hamilton suggested, they may “restore the tranquillity of the commonwealth.” The chief examples of such use of pardons are George Washington’s pardon of participants in the Whiskey Rebellion; Abraham Lincoln and Andrew Johnson’s pardon of numerous former Confederates; Warren G. Harding’s pardon of Eugene V. Debs, who was imprisoned for criticizing U.S. participation in the First World War; Gerald Ford’s pardon of Richard Nixon for any crimes committed in connection with the Watergate scandals; and Jimmy Carter’s pardon of Vietnam War-era draft resisters. Even if some or all of these pardons unjustly relieved criminals of just punishment, the pardons arguably produced a greater good by helping to heal the nation.

Contrary to the contention of some critics of the pardon power that its plenary nature frustrates the Constitution’s system of checks and balances of powers among the President, Congress, and courts, the pardon power actually complements the principle of division of power by providing a check on exercises of the judicial power that are unjust and unwise, and by balancing justice with the national interest.

Although periodic controversies over particular exercises of the pardon power have produced calls for its curtailment or elimination, Congress would be unwise to permit any transient discontent with an isolated abuse of the pardon power to result in any tampering with the power itself.

In the wake of the firestorm over President Ford’s pardon of Richard Nixon in 1974, Congress prudently ignored proposals to curtail the pardon power, permitting time to cool passions. In particular, Congress failed to act on Senator Walter Mondale’s proposed constitutional amendment to permit Congress to nullify a pardon by a two-thirds vote within 120 days after its issuance and Senator William Proxmire’s proposal for an amendment to limit pardons to persons already convicted of crimes. Although the Nixon pardon remains controversial, the present verdict of history is generally much kinder to Ford than was public opinion a quarter of a century ago. Even if Ford used the pardon power unwisely, his misuse of it would not have justified the curtailment of a power that generally had been used with prudence for nearly two centuries.

Although the widespread public outrage over some of Clinton’s pardons has not produced any movement to amend the Constitution, both the Senate Judiciary Committee and the House Government Reform Committee have scheduled hearings on Clinton’s pardon of financier Marc Rich.

Since Congress has no power to revoke Clinton’s pardons or to discipline Clinton for them, a congressional investigation of Clinton’s use of the pardon power is not likely to have any immediate practical impact. Moreover, since the decision about whether to grant a pardon is inherently subjective and plausible arguments are being advanced in favor of even Clinton’s most controversial pardons, Congress cannot prove that any pardon was necessarily “improper,” except in the unlikely event that an investigation produced evidence of actual corruption.

An investigation nevertheless could have a number of salutary effects. It could provide more a more accurate understanding of the pardons. It might also give support to the widespread contention that the arguments against at least some of the pardons outweighed those in their favor and that the dangers created by possible appearances of presidential impropriety exceeded any justifications for one or more of the pardons. An investigation that produced either conclusion would warn future Presidents that any imprudent use or abuse of the pardon power could result in congressional scrutiny that would embarrass the President during or after his term and diminish his stature in the eyes of both his contemporaries and history. Similarly, congressional disapproval of any unpopular pardon would help to assure the American people that the President cannot escape official opprobrium for unwise pardons, even though Congress can neither undo the pardon nor sanction the President.

If, however, the investigations bolstered the arguments in favor of the pardons, the investigations would likewise perform a public service by helping to restore public respect for the pardon process and the presidency.

More broadly, a congressional investigation also could assess the proper procedures and criteria for pardons, offering guidance for President Bush and future Chief Executives. Some critics of the pardon power have expressed concern that the decreased use of pardons for low-profile criminals since the Reagan Administration has resulted in an excessive atrophy of the pardon power as a means of mitigating harshness in the justice system. Indeed, the firestorm over Clinton’s pardons is ironic because Clinton used his power more sparingly than did most of his predecessors -- his issuance of 395 pardons in eight years compares with an average of more than one hundred pardons per year during most presidencies before Reagan’s. After its investigation, Congress could consider whether to advise President Bush to return to return to the pre-Reagan practice of issuing substantial numbers of pardons for ordinary crimes, or to continue to maintain tight limits on the exercise of the pardon power.

A congressional investigation likewise could help to improve the process by which pardons are granted by studying this procedure and making recommendations for improvements. Margaret Colgate Love, who served as Pardon Attorney in the Department of Justice from 1990 to 1997, has urged that the Attorney General become more personally involved in the pardon process. She contends that the Attorney General’s increased delegation of clemency-related responsibilities during the past twenty years has deprived the President of the advice of a major Cabinet official in pardon decisions and has left the President bereft of someone with whom to share political responsibility for unpopular pardons. Likewise, critics of recent pardon procedures have suggested that the Clinton Administration’s alleged tendency to bypass the Justice Department in the pardons process has raised questions about the availability of pardons for “ordinary” criminals and may have disturbed the proper balance between the political and quasi-judicial uses of the pardon power.

Although some opponents of a congressional investigation argue that Clinton would demean the Presidency by submitting to questioning about his exercise of a plenary power, there is a significant precedent for such testimony – President Ford’s appearance before the House Judiciary Committee’s subcommittee on criminal justice during the autumn of 1974 to testify about his pardon of Nixon. Far from debasing the presidency or eroding the principle of separation of powers, Ford’s willingness to answer congressional questions provided a graphic contrast with Nixon’s refusal to cooperate with congressional investigations of Watergate and helped to restore respect for the presidency by giving substance to Ford’s repeated assurances that he understood that the President was not above the law. The dramatic exchange between Ford and Representative Elizabeth Holtzman, the only subcommittee member who had the guts to ask Ford tough questions and to point out that many Americans suspected that Ford had made a deal with Nixon, breathed life into cliches about “democracy in action.”

An appearance of a President or former President before a congressional committee to explain a pardon also provides a rare opportunity for direct dialogue between the President and Congress on a question of constitutional significance and therefore helps to inform thinking about the appropriate criteria for pardons and their role in American law.

A courtyard at the law school where I teach has a large and striking statue of an winged angel whispering into the ear of a blindfolded woman who holds the scales of justice. “Seek wisdom to temper justice with compassion,” the statue’s motto, was composed by the late Lucille Stewart Beeson, an attorney and philanthropist, as a guiding principle for lawyers and judges. Under the Constitution’s pardon clause, the President likewise may temper justice with compassion. We should hope that President Bush and future Presidents will exercise this power with the wisdom that earlier presidents generally have displayed in granting pardons. Although Congress should not try to limit the pardon power, Congress never should hesitate to question its use when significant numbers of Americans believe that a President has exercised it without wisdom.

February 6, 2001

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Discussion

• Professor Ross' op-ed helps to clarify some of my confusion regarding the nature of the pardoning power granted to the President by Article 2, Section 2 of the Constitution. I cannot forget my disgust when Ford pardoned Nixon; however, as one examines the scope of contemporary pardons, one can begin to understand some of the rational-logic(national healing) that may have contributed to the decision process - again, I am thinking of Watergate.

  However, Ross' article has piqued my interest about the pardon of Weinburger by former President Bush in Iran-Contra. What was the Justice Department ruling or opinion on this? What bothers me about this is that Presidents know going into office that they have Constitutionally protected powers to pardon. This raises the question: did Bush allow Weinburger, North and others to participate in Iran-Contra knowing that at the end of their presidency that they (the president) could pardon them? Also, is Article 2, Section 2 absolute power, if that pardonable action could involve a threat the national security? I would appreciate your comments on this, sir.

  I enjoyed Ross' article and I look forward to a response to my question. I teach freshmen English in high school, and these are some of the discussion points my students have asked related to the pardon powers. Again, thanks.

  Ron Stokes