PRESIDENTIAL PARDONS

PRESIDENT CLINTON'S CLEMENCY LEGACY

Professor Daniel T. Kobil
Capital University Law School

We can learn a lot from how President Clinton granted clemency in his waning days in office. Unfortunately, many of the conclusions that are being drawn emphasizing the need to rein in the president’s power to pardon are simply wrong.

The outrage surrounding Clinton’s use of the clemency power stems largely from the pardon issued to financier Marc Rich, as well as other grants of clemency procured with the help of Clinton associates. The Rich pardon, about which we have the most information, indeed seems indefensible. It was granted by Clinton to one of the country’s most-wanted fugitives without the benefit of significant Justice Department input, and despite the president’s glaring conflict of interest in the matter owing to gifts made by Rich’s ex-wife to the Democratic Party and the Clintons personally. Similar problems may infect other last minute grants of clemency.

Some suggest that to prevent such abuses, the U.S. Constitution should be amended to permit a super-majority of the Congress to veto presidential pardons. Others argue that Mr. Clinton should be impeached by Congress again, and thereby stripped of his federal pension and prevented from holding office in the future. Additionally, an unspoken lesson of the controversy to future presidents and governors is that the clemency power is too politically volatile to be used and should be wielded seldom, if at all.

The idea of amending the Constitution to involve Congress in the pardoning process should be rejected today for the same reasons that such a scheme was discarded by the drafters of the Constitution. As Rufus King of Massachusetts bluntly put it, “the legislature is utterly unfit for the purpose.” The recorded debate of the Constitutional Convention suggests that the framers thought that the legislature was too prone to being swayed by the passions of the day to be entrusted with the clemency power.

The Senate’s history of holding up judicial nominations owing to political opposition from influential senators suggests that the framers weren’t far off the mark. One can imagine the public relations points that could be scored by the opposition off of the president’s proposed pardons if every lurid aspect of potential clemency recipients’ backgrounds became a basis for political wrangling. If the clemency power did not completely disappear following such an amendment, it would almost certainly be relegated to use only in the most innocuous circumstances. This may be why a similar proposal that was made in response to President Ford’s unpopular pardon of former President Nixon died in the Senate in 1974.

As for impeaching former President Clinton for his acts of clemency, this is indeed a limit that is contemplated under our Constitution. As former Chief Justice Taft once remarked, “resort to impeachment rather than to a narrow and strained construction” of the clemency power is the proper remedy for abuse of the president’s pardoning prerogative.

However, it is hard to say that impeachment is called for here, absent direct evidence of unlawful conduct. If, as seems probable, Mr. Clinton’s pardon was the product of a woefully misguided desire to help his political friends, then it is akin in principle, if not in degree, to former President Bush’s pardons issued to Caspar Weinberger and other political allies involved in Iran-Contra shortly before he left office. Impeachment of departed presidents for unpopular acts of clemency--as opposed to illegal ones--sets an undesirable precedent.

Finally, it is to be hoped that President Bush, as well as state governors, will not conclude that they should refrain from using the clemency power in order to avoid controversies of their own. One of the reasons that President Clinton seems to have gotten into trouble with clemency is that he was reluctant to use the power during most of his term–no grants of clemency were made by President Clinton during four of his first five years in office, and only a handful were issued prior to last month. Like a utility infielder who has not batted at all during the regular season, when Mr. Clinton finally stepped up to the plate in the bottom of the ninth of the World Series, it’s not surprising that he whiffed in a crucial at-bat.

However, the fact that some of Clinton’s grants of clemency were flawed does not mean that clemency has no place in our system. Many recipients appear to have been entirely deserving--people with no influence serving remarkably severe sentences. For example, Clinton’s grant of clemency to soften the harsh sentence of Derrick Curry seems precisely the sort of case for which clemency was designed. Curry, a teenage college student with no previous criminal record, was sentenced to nearly 20 years in federal prison under the mandatory federal sentencing laws for delivering cocaine as a “flunky” for a drug ring. Curry was released after serving seven years of his sentence, which was longer than the average sentence served by convicted murderers.

Because no system of justice is perfect, there will always be a need for clemency to alleviate its inevitable rigidities. What the Clinton controversy underscores is that in retaining an element of humanity in the form of clemency, we inevitably retain the possibility of human error too.

February 28, 2001

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