PRESIDENTIAL PARDONS

PARDON ME?

Calvin R. Massey
Visiting Professor, Boston College School of Law
Professor of Law, University of California, Hastings

There is nothing wrong with the presidential pardon power. No constitutional amendments are needed; statutory restrictions are unnecessary and of dubious validity.

What went wrong was the good judgment of the American people. We had plenty of notice concerning Bill Clinton's character, in 1992 and again in 1996. We ignored it and we deserve the contemptuous slap in the face he delivered as a parting shot. Character was unimportant, we were told. We should separate the man from his office – so long as the country hummed with prosperity we should relax and accept whatever petty flaws and minor skeletons Bill had dragged with him from Arkansas to Washington. His private life was his own affair, and we should understand how a man could be driven by a remorseless political investigation to wag his finger at us and deny that he had had sex with that woman. We should overlook his attempts to induce others to lie on his behalf and his own dishonest testimony under oath. After all, the investigation itself was a vendetta. We should ignore the flood of soft money, much of it raised illegally from foreign citizens and laundered through domestic entities. We should not ask questions about the possibility that the Clinton administration's sharing of military technology with China was related to that tsunami of soft money. We took this advice and we were rewarded.

But all of that is the past. The Clinton years are over; the question now is what we will do with our national revelation about character. Will we realize our error and pay attention to the lifetime record of those who aspire to public office, rejecting those whose character is deficient, or will we place our trust in institutional devices – statutory restrictions on the process of granting pardons or even constitutional amendments? Parson Weems romanticized George Washington, but it was true that Washington strived to develop an honest, gracious character built on moral integrity. Perhaps Honest Abe the railsplitter is chimerical, but Lincoln's record was one of selfless public service in the nation's darkest hour. But what of Warren Harding, or the tragic Richard Nixon? Did we not know something of their character beforehand? In the first volume of his biography of Lyndon Johnson, Robert Caro tells a revealing story of young Lyndon as a first grader. LBJ rifled his fellow students' lunches at recess, eating their desserts. Should we be surprised at the greed later manifested by Johnson, whether in the stolen 1948 senatorial election or his insatiable lust for political immortality that produced the national sorrow of Vietnam?

This dilemma - trust in character or reliance on institutional safeguards - is a dilemma reminiscent of our early nationhood: To what extent should we rely on civic virtue or institutional checks to protect our democracy? James Madison properly observed that men were not angels and that institutional checks against the demons of our nature were most appropriate. But we aspired then to select the most angelic among us (or, perhaps, the least demonic) to inhabit public office. The unreviewable plenary presidential pardon power was built on that premise. James Madison may have expected self-serving rogues to seek the Presidency, but I suspect he hoped and anticipated that the process of election would deny them entrance to the Oval Office. That process, of course, was far more mediated by political institutions than is today's presidential election process, which is mediated by the mass media. The more deliberate calculations of Madison's era – communication by print, with opportunity for thoughtful reflection and analysis; filtering of public passion by a more independent Electoral College – have been replaced by the staccato graphic image. We judge our Presidents and aspiring Presidents today by their television manners – a smirk here, a shrug there, a gaffe somewhere else, a pratfall down the stairs, vomit in the lap, the cardigan sweater, the woodchopper in blue jeans, the pensive bite of the lower lip. The age of graphic imagery – an age that induces emotional judgments rather than thoughtful ones – is with us and will not soon depart. Perhaps we should react to that fact by creating ever more institutional defenses against our own poor judgment, but I do not think those defenses can endure. If democracy is to endure for an American tricentennial we must give it character, human character, our character. We get what we are, and we must recollect Lincoln's admonition to cultivate the better angels of our character.

February 22, 2001

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Discussion

• If the Presidential Pardon power is constitutionally secure, then I fail to understand just what Clinton's character has to do with it. Looking over the list of presidential pardons in the past, some surpassing many times those issued by Clinton, some of those presidents had questionable characters as well.

  Why not simply understand that these attacks on the Rich pardon are at worst pure anti-semitism, and at best merely political. Better to stay out of questioning any and all pardons or strip it from the constitution. It always amazes me that I have never heard Bill Clinton say anything demeaning about even his worst opponents and to me that spells a sterling character. Or did I read something different in the works of persons from the Judeo-Christian tradition? Go figure.

  Jack L. Cross
  Texas

• Dear Mr Massey,

  After reading your commentary on the misgivings of past presidents (and ourselves), I must whole heartedly concur. Unfortunately, however, I believe that there is a flaw in the system in which your work is read. The problem lies in the fact that the people that read your work already agree with it, while those that do not agree with your outlook will not read your work. I believe that it was best said by Jesus--"Do not cast your pearls before swine." Thank you for your work and your insight.

  Sincerely,
  Pete Barry

• I appreciate Professor Massey's succinct observations on the Presidental pardon powers which introduces the forgotten element of character in Presidential actions and accountability.

  Massey's commentary uses forgotten words as trust and character to show that these values, indeed, are intrinsic to the foundation of the power that created the Presidency, regardless of who occupies the office. The very nature of this political entreprise,now, is showing us that the American people got what they deserved as they voted Clinton for eight years.

  Although human character is flawed, the power of the Presidency dictates that all self-serving impulses must remain dormant, and that the greater service and self-sacrifice is to the people of America.

  Massey's commentary so cogently clarifys this point and he leaves no room for self-pity. America substituted prosperity for morality-and we are in the midst of a payback. Thanks for your commentary, Professor Massey.

  Ron Stokes

• A splendid commentary.

  Comparative lawyers, note that Presidential pardon is also foreseen in Article 17 of the (French) Fifth Republic.

  Xavier Lewis
  BELGIUM

• Compared to George H.W. Bush and and Bob Dole, we did elect the "least demonic" in 1992 and 1996.

  I definitely think these presidential pardons need judicial and legislative review, and a 30-day cooling off period, before they take effect. But if Ashcroft is still Attorney General when Dubya issues his pardons in 2005, do you think we will have a justice department that makes a peep when Dubya pardons similar GOP donors? (And let's face it: these are donor-related pardons).

  Take a real close look at George H.W. Bush's pardons after he lost the 1992 election, and tell us how clean HIS character was.

  What's Neil Bush up to these days? How come we don't see him in any Bush family photos?

  M. Freeland
  California