PRESIDENTIAL PARDONS

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Roundtable

A wide-ranging discussion of Presidential pardons issues, featuring JURIST's own panel of academic and professional experts. To be sure of seeing the latest exchanges, hit Refresh or Reload on your browser.

Latest comment: March 11, 2:55 PM ET


  • [February 28, 2001; 11:14 AM ET]
    Professor Bernard Hibbitts [JURIST moderator]: Welcome to JURIST's Presidential Pardons Roundtable, a wide-ranging online discussion of Presidential pardons issues, featuring our panel of expert law professors. We're live on e-mail, and on the Web at:

    http://jurist.law.pitt.edu/pardonslist.htm

    Gentlemen, let's start with a basic question. Pardons have been granted by chief executives for more than two centuries. Why are the Clinton pardons so controversial?

  • [February 28, 2001; 11:22 AM ET]
    Professor Ralph Stein [Pace]: President Clinton is controversial and his actions have been and are subjected to micro-analysis. While presidential pardons have been controversial in the past, the focus has been far less on the incumbent's general moral character. I suspect it's impossible to divorce from Mr. Clinton's actions any hint of involvement by his wife who, as a U.S. Senator, is properly the scope of questions concerning possible improprieties on her part.

    Mr. Clinton pardoned quite a few people and most are of no interest to either the media or the general public. Perhaps because of Mr. Clinton's involvement with Whitewater, the pardoning of any accused of or suspected of White Collar criminal activity excites attention.

  • [February 28, 2001; 11:33 AM ET]
    Professor Garrett Epps [Oregon]: I think there are two reasons: (1) Clinton himself is news, hated by millions and the first president to be impeached since the 19th Century. So anything he does is bound to be subject to increased scrutiny, and reporters (I used to be one) are likely to write more about a story that they already know how to cover (everybody knows the key names in Clintonville) and whose master narrative they understand. The elder Bush issued some pardons that were, pound for pound, as outrageous as the Clinton pardons, but by the time they came out he was already yesterday's news; and (2) like so many other things about Clinton, there is the sheer scale of them--so many in such a short time (in this I think Clinton was not comparable to Bush I) that it is bound to raise eyebrows even among those not predisposed to distrust the man.

  • [February 28, 2001; 1:44 PM ET]
    Professor Calvin Massey [Boston College/Hastings]: Clinton's pardons (at least the more notorious ones such as Marc Rich, Pincus Green, Carlos Vignali Jr, Braswell) are qualitatively different than past controversial pardons. Ford's pardon of Nixon, and Bush the elder's pardons of Weinberger, et al. were delivered in a context where the alleged criminality had political overtones. I do not mean to suggest that Nixon's actions were proper, or that there was absolutely no basis to charge Iran-Contra participants with criminal actions; rather I suggest that the alleged criminality in those cases (and its investigation) was inextricably linked with ordinary politics. Presidents are on a sounder footing (though not above criticism) when they exercise the pardon power to end criminal consequences of "criminal/political" acts. Consider Andrew Johnson's blanket pardons after the Civil War or Jimmy Carter's draft amnesty. Or suppose that Robert Ray had not struck a deal with Clinton, and Bush the younger now granted a pardon to Clinton.

    But Clinton's pardons are outside this context. These were not political pardons. Why was Marc Rich pardoned but not Michael Milken? At least Milken served his time and paid an enormous fine. Clinton's pardons excite comment because the people don't trust Clinton, and they suspect that these pardons were utterly crass and self-serving. So far, the circumstances of their delivery seem to confirm some of that mistrust.

  • [February 28, 2001; 2:12 PM ET]
    Professor James O' Reilly [Cincinnati]: Unlike the system of papal Indulgences (forgiveness of sins) that led Martin Luther to start his Reformation, and unlike the "Get Out of Jail Free" card that gave Milton Bradley's fans a great victory tool in Monopoly, our society is unfamiliar with a mechanism for sudden exculpation and rapid transformation from "sinner" to "saint" (or make that, "non-sinner"). Hamilton's comments re: Pardon Power in the Federalist Papers are well-taken for students of history; but for students of psychology or moral philosophy, there is something remarkable about the rarely discussed ability to pronounce one "forgiven" in return for the 30 shekels of silver, or whatever today's equivalent might be. The story is not that a President used a constitutional power, but that he sold his access to power for such a remarkable set of shekels to such a group of sinners. If the math is right, 39% of all Clinton pardons were announced three hours before he left office, the last 0.0000428% of his Presidency!

  • [February 28, 2001; 2:30 PM ET]
    Professor Gregory Sisk [Drake]: If I might introduce a new topic: the propriety and practicality of a constitutional amendment to limit the pardon power. Up until today anyway, the general consensus has been that such a change is next to impossible and reflect overzealous partisan reactions. But Congressman Barney Frank, no Clinton-hating Republican he, introduced a constitutional amendment to preclude use of the pardon power from before the election through Inauguration Day.

    In a piece that I have pending for consideration before the National Law Journal...I proposed basically the same thing. Any change of success here?

  • [February 28, 2001; 2:48 PM ET]
    Professor Garrett Epps [Oregon]: For what it's worth, I think that the pardon power should not ordinarily be used during the transition period. I am leery of an amendment that would strip the president of the power in an extraordinary circumstance. In addition, the proposed amendment addresses the issue of illegitimacy of official action in only one context. My view is that the long transition window is a historical accident that subjects the United States to multiple dangers. First is the abuse of the pardon power, which has happened now and happened under the elder Bush. Second is the abuse of the legislative power, which happened in late 1978 when a lame-duck Congress impeached a President. Third is misuse of executive power generally, which happened when the elder Bush committed troops to Somalia knowing that neither he nor his party would be responsible for extricating them.

    The solution to the problem is not obvious. Until last November I thought it *was* obvious--limit the transition to a few days rather than the dangerously long period we now have. In fact, I had a piece set in type for a magazine to run after the election saying that since we now have efficient means of vote-counting, we know the result of an election immediately and shouldn't wait weeks before showing the old president the door. Fortunately the magazine had time to pull this exceedingly ill-timed statement!!

    But the problem remains--if the government is to remain in the old hands for a long period after the election, what justification do we have for limiting the pardon power but not limiting, say, the commander-in-chief power? Some combination of shortening the transition time (once we get a modern election system in place) and requiring consultation might be appropriate.

  • [February 28, 2001; 3:02 PM ET]
    Professor Ralph Stein [Pace]: The Equal Rights Amendment didn't get ratified. An amendment to overturn Roe v. Wade has gone nowhere despite enormous support from anti-choice forces. An amendment to micromanage the Pardon Power will receive no support from the leaders of either political party. Exit pardons make sense politically and are not inherently offensive. Pardoning on departing office may prevent distractive debate. Forcing a President to make pardons before a closure date may well inhibit the exercise of mercy because of political ramifications that a sitting chief executive might face through controversial pardons.

    There's a good reason why the Constitution's Framers made the document difficult to amend and over two centuries of history have supported their vision.

  • [February 28, 2001; 4:33 PM ET]
    Professor William Ross [Cumberland]: First, I agree with Professor Stein that any constitutional amendment would be precipitate. No similar abuses of the pardon pardon have occurred during the past two centuries and there is little reason to suppose that such abuses will occur again soon. Like any legal change, an amendment could produce unintended and unfortunate consequences.

    This is why I disagree with Professor Sisk's proposal to prohibit a lame-duck President from issuing pardons. Although the absence of political accountability obviously can embolden a lame-duck President to make arbitrary, unwise, or corrupt pardons, a retiring President's liberation from political pressures may enable him to make politically unpopular pardons that are just and wise. The dispensation of such disinterested mercy is at the heart of the pardon power. Moreover, the danger of personal corruption in an outgoing President is greatly mitigated by the dazzling array of legitimate economic opportunities that have become available to former Presidents during recent decades. Finally, many of the allegations of impropriety in the Clinton pardons are related to Hillary Clinton's Senate candidacy. Although I hope that we continue to have presidential spouses who pursue independent careers, it is unlikely that many outgoing Presidents in the future will have husbands or wives who have political careers that could benefit from misuse of the pardon power.

    Another subject: One of the aspects of the Clinton pardons that has received little attention and which I find very troubling is the pardons graphically illustrate how wealth and power in this nation can provide access to opportunities even if and when ultimate decisions are based on merit. Even if we assume that the wealthy and powerful recipients of Clinton's pardons did not give the Clintons anything in exchange for the pardons and that Clinton evaluated their cases fairly and objectively, without reference to their clout, they still appear to have come to the President's attention because they were wealthy and well known. This is why it is especially disturbing that Clinton appears to have bypassed Justice Department procedures.

    In his New York Times column, Clinton offered a number of plausible justifications for his most controversial pardons. It is not difficult to believe that Clinton, who is known as a compassionate man, would find objective reasons for pardoning these persons. But there are hundreds of thousands of inmates in federal prisons, many of whom could make plausible cases for presidential compassion, and there are said to be 3000 pardon applications backlogged in the Justice Department. These people did not receive the President's ear, which demonstrates (as if demonstration were really necessary) that so much of life is about gate-keeping and that a wealthy person is more likely to get his or her foot through that gate than is the poor or obscure person, regardless of what happens once the wealthy person is past the gate. Although Clinton pointed out that most of his 140 pardons went to obscure persons,there surely must be far more than 140 persons in the federal prison system who deserve pardons more than did the wealthiest and most powerful beneficiaries of Clinton's compassion. Clinton's devotion of so much energy to the pardons during his waning hours in office -- the unseemly haste to which Professor O'Reilly aptly refers -- is particularly unseemly since 3000 pardon applications apparently remained bottled up in the Justice Department. This makes a mockery of Clinton's much-professed compassion for the poor and the oppressed.

  • [February 28, 2001; 5:13 PM ET]
    Professor Ralph Stein [Pace]: Call me a "Crisis Pooper" if you will but I don't think the issue of the Pardon Power is either very serious nor is the matter likely to last long other than in the pages of law reviews and academic journals.

    I suspect most people can understand why the Framers created a power to pardon and most would also recognize that very few beneficiaries of the power enjoy universal love and acclaim for their lives of selflessness. President Clinton, in the view of many if not most, abused a legitimate and necessary power. There have been many examples of Executive Branch abuse all bringing forth short-lived calls for change. Change does come but it comes through the political process. I suspect very few presidents will be willing or able to handle a predicable charge of misuse of the Pardon Power with Mr. Clinton's customary aplomb.

  • [February 28, 2001; 5:39 PM ET]
    Professor Paul Finkelman [Tulsa]: My sense is that this is not all that big a deal. In terms of politics and the state of the Republic, George H.W. Bush's pardon of Weinberger was much more important; in terms of the integity of our political process, the Nixon pardon was more significant. This strikes me as one more attempt by Republicans to have a last shot at a man they hate. The couldn't drive him out of office, so that want to attack him now that he is out of office. The pardon of Rich was hardly as brazen as other political pardons.

    Consider, for example, Thomas Jefferson. His very first act as president was to pardon a whole group recently convicted criminals. All had been convicted in federal courts, and in fact in different federal courts around the country. In those days the Supreme Court justices rode circuit and thus almost every Supreme Court Justice had presided over at least one of the trials of these criminals. All were deeply partisan friends and supporters of Jefferson. None were his political opponents. He pardoned them all, because they were his political buddies and pals. No one said a word! Clinton pardoned one man whose ex-wife gave Clinton money (now, seriously, how many ex-wives give fortunes away to help their ex-husbands?). Jefferson pardoned a huge number (by the standards of the time) of federal prisoners.

    Now, of course Jefferson did it because they were convicted of a "political crime" -- sedition. But, he only did it for *his* supporters. As president, he allowed similar prosecutions by his own administration under common law, see U.S. v. Hudson and Goodwin, 7 Cr. (11 U.S.) 32 (1812); and the pushed states prosecutors to go after his enemies in the states. This was done in Croswell's case in New York.

    Thus, we have a president who is a major "icon" of liberty and American politics, pardoning his friends and political allies for their criminal behavior, and then pushing for the prosecution of his political enemies for the same offense. Clinton is a minor leaguer by comparison.

  • [February 28, 2001; 5:44 PM ET]
    Professor Garrett Epps [Oregon]: I certainly agree that this latest pardon flap is not a crisis. But I do think it is a mistake to minimize the *larger* structural problem of unaccountable political power that is currently built into the Constitutional scheme by the long transition from one Congress and executive to the next. This shows up as a problem over and over. The first great Supreme Court constitutional confrontation, MARBURY V. MADISON, arose from precisely this flaw--the Federalists, thoroughly repudiated at the polls in 1800, responded by reducing the size of the Supreme Court to deny the incoming Jeffersonians appointments, restructuring the federal judiciary to create positions for their party loyalists, and then appointing "midnight judges" in lame-duck sessions to cement their control of the judicial branch for the next generation. As it turned out, the appointment of John Marshall as Chief Justice was a great asset for the infant republic--but that does not change the problem of legitimacy posed by the exercise of power by a repudiated and unaccountable president and Congress. After Lincoln's election, the Buchanan administration allowed the situation to drift to the point that Lincoln almost had no country to govern when he took office (after sneaking through Baltimore in disguise to avoid pro-slavery mobs). Again, in 1932, Hoover remained president from November to March even though the people had clearly rejected him; because the government was paralyzed, the Depression grew worse while the incoming and outgoing administrations sparred over the correct polidies to follow. Ford proposed making Puerto Rico a state in lame-duck session; Carter negotiated the hostage release even though the hostage issue had almost certainly cost him the presidency; Bush I made his own questionable pardons and sent troops into Somalia; a lame-duck Congress impeached Clinton; now Clinton writes his page in the sorry story. We take for granted that there is something natural about his, but it arose by historical accident. In Britain, the new prime minister moves into Downing Street on the morning after the election. A defeated or rejected president and Congress have very little legitimacy and their actions have the potential for mischief. It seems to me better to address this than to try to create a situation where the government in office does not have the full power specified for it by the Constitution. We may not always be lucky in these situations.

  • [February 28, 2001; 6:11 PM ET]
    Professor Gregory Sisk [Drake]: I think the danger, perhaps even the trend, of abuse of the pardon power during the transition period between election and Inauguration Day is sufficiently great to justify the modest limitation on power that I've proposed (and which Barney Frank -- independently I must say -- proposed as well in his introduced amendment today). While Clinton's abuse is, like so much of his behavior, notable in its excessiveness and vulgarity, the last president who experienced a transition to another party likewise engaged in last-minute and questionable exercises of official forgiveness. While the Rich pardon is perhaps the most egregious, given the fact that he was a fugitive who had rejected his American citizenship and whose misconduct involved the essence of treason in trading with the enemy, removal of Rich from the long list might have reduced the publicity but not the fact of abuse. While a true leader occasionally will take actions that provoke controversy, public accountability is nonetheless an essential constraint on executive power -- a constraint that disappears during that transition period. The temptation to misbehavior during this period is too great to be ignored. We now have a track-record justifying a modest revision of the power. Moreover, given Congressman Frank's record of loyalty to the Democratic Party and to Clinton, a bipartisan opportunity exists here to avoid this harm in the future.

  • [March 1, 2001; 8:09 AM ET]
    Professor Ralph Stein [Pace]: I can't shake the feeling that those who advocate changing the Constitutional power to pardon are those expressing the greatest dislike of Mr. Clinton. That there are many such people is a reality.

    Placing a moratorium on the power to pardon would be an unnecessary and unwise dilution of the President's power. It also would solve little if anything with regard to the possibility of truly non-merited pardons.

    If the list of Mr. Clinton's pardons is examined, or the list of those given by several of his predecessors, it should be obvious that many receiving pardons were either controversial politically or, more commonly, their situation was. Whatever one may think of pardons for Vietnam-era accused or proven terrorists, how likely would a pardon have been if only awardable before an incumbent becomes a lame duck? How much MORE likely would political wheeling and dealing be if powerful legislative and private figures could seek pardons when a president might need support for bills or for a reelection campaign (or for his party's election expenses)?

    I'm totally unmoved by cries for change because I can't see anything wrong with the system as it exists under the Constitution. In any event, as I've previously opined, a Constitutional amendment is virtually unimaginable.

  • [March 1, 2001; 8:22 AM ET]
    Professor Brian Kalt [Michigan State]: Sorry for my silence: I got on the list with my home email, and Wednesday is the day that I have a class at 9AM and one until 9PM, and lots of stuff in between.

    I think that there is a valid basis for the unprecedented reaction to Clinton's pardons.

    First, the reaction. It is not just political. Witness the outcry from Democrats contrasting with the expressed desire from President Bush (who admittedly has nothing to lose in saying this) to move on.

    It is not just media obsession with Clinton. They certainly would rather write about him than about Bush's elementary school visits (Al Kamen from the Washington Post said this to me on the phone, and I wouldn't reveal to anyone that he admitted this except that he said the same thing in his column the next day!) Still, I think that bypassing the regular procedures to pardon an international fugitive on the Most Wanted list whose ex-wife has donated large sums of money is a legitimately big news story, to say the least.

    Bush I's pardon of Weinberger and Ford's pardon of Nixon were different. First of all, Ford's pardon was done when he was still accountable. It was a public policy judgment--which is what a pardon is supposed to be--and not a political one. Ford had to be politically astute enough to realize, even before it proved true, that pardoning Nixon was a calculated risk that might cost him the election in 1976. The system worked the way it was supposed to.

    Bush I's pardon of Weinberger was not subject to the same accountability, to be sure, but at least we know why he did it. You can disagree with Bush's reasons, but you can also agree with them, and much of the country did. I'm not saying that I would have pardoned Weinberger, just that I was not surprised or upset when Bush did. By the same token, I (along with the media and the Republicans) am not particularly troubled by the pardon of Susan McDougal. I don't think *anyone* besides Marc Rich really believes Clinton's reasons--and I include Jack Quinn and Bill Clinton in the list of nonbelievers.

    I disagree with those who say that Bush was protecting himself by pardoning Weinberger, because Bush did not pardon himself, and Walsh could still have proceeded against Bush if he had so chosen. But even if Bush's pardon was about self-preservation rather than public policy, Clinton's pardon of Rich is still more objectionable. Clinton's pardon wasn't *even* about self-preservation. Depending on who you believe, it was about money, perhaps, or personal antipathy for prosecutors, or sleep deprivation. Drawing on administrative law for a moment, you can only get so exercised about a pardon that is wrong, but one that is arbitrary and capricious is bound to draw lots more condemnation, and rightly so.

    Finally, a word in (partial) defense of Jefferson, based on Paul Finkelman's excellent point. The Sedition Act affected Jeffersonians exclusively because the law was specifically directed at opponents of the government. Pardoning those convicted was a logical thing to do. You could say that, to some degree, it was part of what Jefferson was elected to do. Paul's point that Jefferson was inconsistent later is a great one--but it is those later actions that are unacceptable, not the pardons.

  • [March 1, 2001; 8:45 AM ET]
    Professor Bernard Hibbitts [JURIST Moderator]: For the information of everyone on the list, JURIST has just posted an exclusive full-text copy of former Pardon Attorney Margaret Love's testimony yesterday (February 28) before the House Judiciary Committee Subcommittee on the Constitution. The final Clinton pardons were, Love says, "an accident waiting to happen." The document makes fascinating reading, and you'll find it at:

    http://jurist.law.pitt.edu/love2.htm

  • [March 1, 2001; 9:00 AM ET]
    Professor Brian Kalt [Michigan State]: Let me first say that I'm glad that these issues are being discussed. I don't think, however, that we should change the structure of the pardon power (Greg Sisk's statement to the contrary is the best I have seen so far, though).

    There are two advantages I see to changing the procedure--there will be fewer bad pardons, and people will have more confidence in the government (or be less disappointed by it). I don't think that this warrants a change, for the reasons that have been mentioned by others in the group, and by a couple more.

    1. As has been mentioned in this group, this is a rare event.

    2. There *is* accountability here (is "punity" a word?). Clinton is only 54 years old. He is not just affected by the judgment of history, he is affected by the damage done to his future political career and his earning potential. Also, I would argue, he could still be impeached for this. Even if he did not, in a stable two party system there is always the potential for political repurcussion even for lame duck actions. Finally, and most importantly, if a pardon is corruptly given, that corruption can be prosecuted (as we are seeing). The only harm is that someone who should not have been pardoned is pardoned (although if they were in on the corruption, they can be prosecuted too. If we can swallow the exclusionary rule (if), then surely we can stomach this.

    3. The obvious problem with a pardon might not be evident right away. The Marc Rich case initially took a backseat to the W's on the White House keyboards. The Rodham connection took even longer. One can imagine a situation under Greg Sisk's plan in which a pardon is issued on the last day possible (the day before the election) but its implications are not appreciated for days after. Then we have a line drawing problem. Do we move the deadline back to a month before the election? Two months?

    4. Relatedly, if we put a deadline for pardons before the election, this will merely change the incentives for impropriety. The incentive to grant last minute pardons will still exist, but there will be a new incentive to issue them on the sly, to cover them up, or to obfuscate.

    5. On the point about shortening the transition period, it is worth noting that we have shortened it substantially from what the Framers established. A transition period is needed to set up a huge apparatus effectively, and in the meantime there should be a functioning system in place. If the old president is still the president, he should have his powers intact. In systems where the winner takes office the next day, there is a shadow government in operation waiting to take over well before the election even occurs. We have nothing like that.

  • [March 1, 2001; 9:05 AM ET]
    Professor Ralph Stein [Pace]: Brian's point just demonstrates again that the problem with the Clinton pardons is Mr. Clinton, not the power

    The outrage over just a few of Mr. Clinton's pardons, the Rich one being the most exasperating and objectionable, itself acts as an object lesson for future presidents. A sense of the scope of a constitutional power and its proper employment can arise from the experience of history. The Presidency is an institution and it has a memory.

    The Jefferson presidency is fascinating for many reasons and I've always enjoyed covering it in constitutional legal history seminars. Its relevance to anything recently occurring is dubious. Until settling down into old age the chief Federalist and Jeffersonian protagonists were grappling with rapidly forming, threatening and inherently unstable political factions - the very cohorts that The Federalist Papers tried to argue would be held at bay through the Constitution's wisdom.

    With Mr. Clinton we have the specter and possibly the reality of the contemporary importance of monied support for presidents whose roles as chief executive and head of party are often intertwined.

    Part of the response to the Rich pardon comes from the exasperation of a lot of folks that Mr. Clinton just ain't going away. While this controversy has definitely hurt his short-term speech-giving prospects (for cash, much needed), I'm betting on his long-term re-emergence as an important public character In a modified use of the Jane Jacobs term.

  • [March 1, 2001; 9:14 AM ET]
    Professor Ralph Stein [Pace]: I can not imagine how anyone (starting with Arlen Spector) can imagine that an ex-president can be impeached. The plain text of the Constitution makes it clear that the power to impeach is the power to remove from office those found guilty of some degree of criminality or nonfeasance. No other penalty can be imposed upon conviction. Mr. Clinton is now a private citizen. Period.

    The suggestion that Mr. Clinton could now be impeached is the most bizarre constitutional theory I have ever encountered.

  • [March 1, 2001; 9:47 AM ET]
    Professor Brian Kalt [Michigan State]: Well, before this recent unpleasantness, there was a scholarly consensus that post-term impeachments were OK. Also, around Watergate, there were two articles that covered this and agreed it could be done.

    I wrote an op-ed on this in Canada back in '99. I circulated one a few weeks ago two days before Specter spoke. It was rejected by one page for being too fantastical; presumably the revised version I wrote after that was too derivative....

    A more direct response to your points first, though. First, English practice allowed post-term impeachment. Other excesses of the English impeachment system were limited *explicitly* in the Constitution (punishment, limit to high crimes and misdemeanors), but this one was not. As another historical point, Secretary of War Belknap was unanimously impeached in 1876 after he had resigned. The Senate took up the trial, voted on whether they had jurisdiction over an ex-official, and decided by a majority that they did. Belknap was nevertheless acquitted.

    As for the plain text of the Constitution, two points. First, Article II specifies that sitting officials are to be removed upon conviction. It does not say that *only* sitting officials can be impeached. Given that executive officials have limited terms, there was debate at the Convention over allowing an already-powerful Congress this big check on the executive. They decided that Congress should, and so specified the power to remove sitting officials. Ex-officials? That went without saying, and nothing in Article II eliminates the possibility.

    Second, punishment is *not* limited in the plain text to removal. Article I limits the punishment at removal and *disqualification from holding future office*. This is a maximum on punishmet, not a minimum, so they don't have to disqualify and, if the official is already gone, they don't have to remove either. Disqualification is a powerful punishment for someone like Clinton who will be around for a while.

    The real question, I would say, is why we would want to bother. My answer is that we ordinarily wouldn't. Then again, we shouldn't allow someone like Belknap to escape impeachment just by resigning. We shouldn't put a limit on impeachment based on running out the clock either. Again, disqualification is powerful punishment. Finally, Congress was intended to be (and some day still might) a better forum for investigating what would necessarily be highly politically-charged allegations. All of that said, I can't imagine that post-term impeachment will make sense very often, if ever.

  • [March 1, 2001; 11:27 AM ET]
    Professor Ralph Stein [Pace]: Hi Brian, For clarity, I've interspersed my responses with your comments.

    >>>Well, before this recent unpleasantness, there was a scholarly consensus that post-term impeachments were OK...

    With great respect I suggest there was NO scholarly consensus on post-term impeachment before the current mess. Certainly the theory was broached by a few but I doubt it has gained, even now, any significant number of adherents....

    >>>A more direct response to your points first, though. First, English practice allowed post-term impeachment...As another historical point, Secretary of War Belknap was unanimously impeached in 1876 after he had resigned. The Senate took up the trial, voted on whether they had jurisdiction over an ex-official, and decided by a majority that they did. Belknap was nevertheless acquitted.

    Belknap is a poor precedent emanating from the Radical Reconstruction days that also gave us Ex parte McCardle. As Justice Douglas noted in Glidden v. Zdanok, it is doubtful that McCardle would still be recognized as good law. I would apply the same analysis to the Belknap imbroglio.

    As to English practice, impeachment was a device to remove, sometimes, those protected by a sovereign whose acts could not be directly or easily controlled. After the regicide of Charles I and the restoration of his son to the throne impeachment became the means of controlling the king, when necessary, without again imperiling him (or her) personally. I don't think the English use of impeachment is a rational basis for interpreting that power under our Constitution.

    >>>As for the plain text of the Constitution, two points. First, Article II specifies that sitting officials are to be removed upon conviction...

    I certainly see a problem in effecting jurisdiction over a non-official. Of course he/she could be tried in absentia. However, the very meaning of the word "impeach" suggests a different concept than "indict" and I believe the holding of an office is inseparable from asserting jurisdiction to impeach. Incidentally, I don't believe anyone has ever suggested impeaching a federal judge who has resigned and is serving time in prison.

    >>>Second, punishment is *not* limited in the plain text to removal. Article I limits the punishment at removal and *disqualification from holding future office*. This is a maximum on punishment, not a minimum...

    Certainly the Senate could not disqualify Mr. Clinton from running for state or local office. I simply disagree that the punishment is a maximum. I believe it reflects the Framers' desire to remove any possibility of legislatively imposed AFFLICTIVE punishment which was a feature of English impeachment convictions.

    Frankly, I was stunned at the suggestion made by some that Mr. Clinton could be stripped of Secret Service protection as a punishment. Haven't we had enough violence against presidents and even a former president (remember the incident when Mr. Reagan was giving a speech). That idea speaks volumes about the irrational vindictiveness Mr. Clinton seems to generate although I recognize that some of my friends would deny that there's anything irrational in hating Mr. Clinton.

  • [March 1, 2001; 11:32 AM ET]
    Professor Greg Sisk [Drake]: Ralph Stein's comment -- "I can't shake the feeling that those who advocate changing the Constitutional power to pardon are those expressing the greatest dislike of Mr. Clinton" -- certainly cannot describe Congressman Barney Frank, as strong a defender of President Clinton during the impeachment episode as one could find. Frank simply cannot be dismissed as expressing hatred for Clinton by introducing his proposed constitutional amendment to place a "moratorium" on the power to pardon (I like that description -- "moratorium" -- thanks, Ralph for that imagery, wish I'd thought to label it so). For the same reason, I think a constitutional amendment that is so calibrated to the harm is plausible. If a loyal liberal Democrat like Barney Frank is so moved to act, then the movement ceases to be one of mere Clinton-bashing and takes on a bipartisan cast. Moreover, one of the great merits of the Frank proposal, which was also a central part of my own independently-derived proposal, is that it recognizes the importance of the pardon power and does not seek to limit its application in any substantive way.

    Brian Kalt's argument that the pardon power is rarely abused and therefore does not justify a strong response has force. But I submit two rejoinders: First, while the vehement response to Bill Clinton's conduct may counter it, there has been a trend of such conduct by departing presidents experiencing transitions to administrations of the opposite party: e.g., Bush I's pardon of the Iran-Contra actors and now Clinton's dramatic list of pardoned criminals. One could argue that Clinton has accelerated the trend, although the number and multiple variety of outrages represented in those numbers more likely reflects Clinton's general tendency toward excess in all things. Second, even if rare, the danger is great. Indeed I would suggest that the most important thing about the Clinton episode is not the level of abuse, but as a reminder that such abuse can occur and could even be worse. We have seen two presidents the subject of serious impeachment proceedings in only a quarter century, and observed three presidents turned out of office (Ford, Carter, Bush I). Sad to say, it is not hard to conceive of such occurring again in our life time. Thus, it is not too difficult to conceive of a president having been so discredited through scandal or defeat for re-election as to have lost any concerns about historical legacy or public opinion, and who then might act as did Tennessee Governor Ray Blanton to extend pardons to criminals out of spite or malicious conspiracy. While such a president might be subject to subsequent criminal prosecution (but only if there were something like a bribe, as outrageous or even random selection of pardonees would not be criminal misconduct), the pardons nonetheless would remain in full force and could not be overturned. This need only happen once to be disastrous. While one cannot entirely protect against this harm, a modest proposal to withdraw the power during the limited but most dangerous period of potential abuse seems appropriate. In fact, I might amend my proposal to likewise place a moratorium (I like that word!) on the pardon power when a president has been impeached until the president has been removed (and thus obviously no longer holds the office necessary to exercise the power) or been acquitted (in which case the power should be restored).

    Finally, Garrett Epps thoughtfully raises the structural problem of unaccountable political power being exercised during the transition period. Some of those concerns can be addressed through the ordinary democratic political process, such as imposing a waiting period on executive orders or regulations issued during the transition period which thereby allows the successor to determine whether to withdraw them. Other concerns are likely unaddressable, as we could not safely withdraw the president's power to use military force during this period given the threats to the country that would follow. But control of the pardon power during this period cannot be achieved through ordinary political process nor would the country be harmed if it were so limited, thus meaning a limited constitutional amendment is the only possible response.

  • [March 1, 2001; 12:30 PM ET]
    Professor Brian Kalt [Michigan State]: I don't understand why people are surprised that we are focusing on the irregular rather than the mundane pardons out of Clinton's last day lode. Not to convict Clinton by analogy, but if I go to a supermarket, and I buy 100 items and I shoplift 4, how much attention should be given to the 100?

    On impeaching Clinton, I have a few comments.

    First, I stand by my characterization (actually based on Michael Gerhardt's suggestion in the Texas Law Review in 1989) that there is a scholarly consensus on post-term impeachment, in print at least. For the record, I am working on a full length piece on the question, and a colleague of mine, Jorge Souss, is writing a full length counterpoint.

    On Ralph's comments on the Belknap example, I don't think that *every* precedent from 1876 (at the very end of Reconstruction) is inherently suspect. Belknap himself was a Republican, and was impeached by a *unanimous* House (where there was a Democratic majority of 181 to 107). The vote on whether the Senate (46-28 Republican majority) had jurisdiction, to the extent that it was a party line vote, saw Democrats joined by some Republicans arguing that impeachment was proper. The discredit you place on the Radicals belongs in this case on those opposing impeachment, though I think that this was in all likelihood a disagreement on the merits.

    I'm also in disagreement with Ralph on the punishment limit in Article II. Ralph seems to be arguing that the language of "not extend[ing] further than" creates a minimum as well as a maximum. I don't see it. If disqualification is required in this way, why is it not mentioned in Article II, where only removal is specified for sitting officials? Isn't that because the Senate could decide that disqualification is not necessary?

    But I'm 100% in agreement with Ralph about Clinton's Secret Service protection. To be sure, under current federal law a *sitting* president who has been impeached, convicted, and removed loses his benefits. The point is less one of what protection he should have than of who should pay for it. But I agree with Ralph (maybe because I don't hate Clinton, let alone irrationally) that Clinton should get some Secret Service protection.

  • [March 1, 2001; 1:02 PM ET]
    Professor Paul Finkelman [Tulsa]: I think Greg's point is well taken, but ultimately, the limitation seems to make the process *more* political, and less likely to lead to justice where miscarriages of justice have possibly taken place. I was sorry Clinton did not consider some of the more truly political cases, like Pollard, where at least a commutation seems reasonable. Perhaps after the election is the *best* time for such pardons.

    As far as Rich "trading with the enemy," where does that leave us with Casper Weinberger's pardon? His conduct, as well as Oliver North's, truly involved trading with the enemy.

  • [March 1, 2001; 1:43 PM ET]
    Professor Ralph Stein [Pace]: Paul's point follows my position especially since I have a diametrically opposing view of the Pollard case. I desire that his sentence be served fully. This isn't the place to discuss the merits of the matter but a commutation or pardon during a presidential term would have serious repercussions not only politically. It would polarize and inappropriately politicize the National Security community (of which I was once a member).

    Had Mr. Clinton pardoned Pollard or commuted his sentence on leaving office I and many others would have been very upset but there would have been limited, at best, reverberations in the National Security community with regard to functioning under the President.

  • [March 1, 2001; 2:45 PM ET]
    Professor Ralph Stein [Pace]: Does anyone see a Constitutional or major political problem with a statutory requirement that all formal petitions for a pardon or commutation to the President be timely published in the Federal Register? My proposed statute would have an exception where revealing the name of the petitioner would endanger the individual or threaten National Security.

  • [March 1, 2001; 3:02 PM ET]
    Professor Brian Kalt [Michigan State]: I don't think that it is unconstitutional, but there is nothing you can do to prevent the President from granting pardons based on "informal" petitions (unless you amend the Constitution). Therefore, there is no incentive to the petitioner to make it formal rather than go through back channels.

  • [March 1, 2001; 3:13 PM ET]
    Professor Greg Sisk [Drake]: I'd have to give it more thought, but my initial reaction is that it would be problematic -- constitutionally not politically. Given that the pardon power is a presidential prerogative that he does not share with any other branch, the imposition of a statutory procedure is troublesome. Moreover, "timely" publication would effectively limit the president's ability to grant pardons near the end of his term when the time limits push beyond departure. As you know, I think that kind of limitation is a good thing, but I think it requires constitutional adjustment to permit it.

  • [March 1, 2001; 3:34 PM ET]
    Professor James O'Reilly [Cincinnati]: I endorse the statutory route of transparency via the Federal Register; we already use these fora for such mundane applications as food additive chemical filings and the like, as a vehicle to communicate to competitors re the potential that rules may be altered to allow a competitor's new product. The suggestion I gave the Cox Press-Atlanta Constitution reporter was for more visible Justice Department channeling, and I would endorse the Stein suggestion for a transparency of the pardon process via the Federal Register. We can't close a harbor channel to boaters for a fireworks display without a USCG notice in the daily Federal Register; there would be considerably more interest in the pardon applications.

  • [March 1, 2001; 3:57 PM ET]
    Professor Ralph Stein [Pace]: I suspect that "informal" petitions, with a statutory requirement to publish formal ones, would be inherently suspect and made less welcome by the incumbent President. Publishing petitions also greatly enhances an expectation that counsel in the Department of Justice will be involved in evaluating the petitioner's claim.

  • [March 1, 2001; 4:00 PM ET]
    Professor Brian Kalt [Michigan State]: But this doesn't respond to the Clinton problem at all. If the president acts as you describe, then we don't need to worry about him abusing the pardon power, and the publication in the Fed. Reg. isn't needed. The presidents and the pardons that we are worried about are precisely those where the president does *not* view informal petitions as suspect, and where he does not care to get DOJ involved.

  • [March 1, 2001; 4:03 PM ET]
    Professor Ralph Stein [Pace]: I appreciate Greg's observation and do recognize that publication for a "Midnight" application for a pardon might be hard to do. One answer is that publication would be required when the President receives a formal application and that, usually, is WAY before the end of the term. My idea would be to use the publication process to discourage a President from receiving secret or informal late petitions but not, of course, to abrogate his Constitutional authority to entertain such pleas.

  • [March 1, 2001; 4:09 PM ET]
    Professor Ralph Stein [Pace]: [replying to Brian Kalt] I'm suggesting that the "Clinton problem" is less likely to recur IF there is a process that reflects a desire for a more open and formalized process. Presidents could ignore the process but would be more at risk for severe criticism. Frankly it's hard to imagine a future chief executive in our lifetime who won't be guided by the Clinton issue.

  • [March 1, 2001; 4:18 PM ET]
    Professor Gregory Sisk [Drake]: So long as it is made clear that the formal process, although preferred and hopefully endorsed by the president as his choice for the sole avenue, nonetheless is optional from a constitutional standpoint, then I see no constitutional obstacle at all.

  • [March 1, 2001; 4:22 PM ET]
    Professor Brian Kalt [Michigan State]: Even though this would be constitutional, it has such a massive hole in it that I again have to wonder how this would protect us from future Clinton-esque pardons. Ralph states, correctly, that "Presidents could ignore the process but would be more at risk for severe criticism," but the point remains that you could say the exact same thing about the current DOJ process. Yes, the process makes sense, but if you think it will prevent bad pardons you are fooling yourselves. Ralph also says, correctly, that "it's hard to imagine a future chief executive in our lifetime who won't be guided by the Clinton issue." While that's right, I'd suggest that it would have been hard to imagine anything like Clinton's pardons after Watergate. And yet, here we are.

  • [March 1, 2001; 5:20 PM ET]
    Professor Garrett Epps [Oregon]: In a weird way, the furor over the Clinton pardons could be used as an argument that no amendment is needed to "restore accountability." Future presidents will be aware of the penalty paid by this ex-president for his excessive enthusiasm and will be guided thereby. Outgoing presidents do care about their historical reputations. If this argument has any merit, it argues against any constitutional amendment. It really IS unwise to dilute the power of any branch of the federal government unless the dilution is really necessary.

  • [March 1, 2001; 5:30 PM ET]
    Professor Ralph Stein [Pace]: Yep. That's my point. Don't tinker with the Constitution - chill a future President who might be willing to pardon "supportive" friends. :)

  • [March 2, 2001; 12:02 AM ET]
    Professor Paul Finkelman [Tulsa]: I replied briefly to this earlier, but I want to reply in a little greater depth.

    It strikes me that Greg Sisk is too narrowly partisan here, citing Barney Frank as a good Democrat who supports his position. I think we can cite pardons on all sides that we think are bad because of our political views. Ford's pardon of Nixon, Bush's of Weinberger, Clinton's, and if we were old enough, Jefferson's pardon of James Callendar. All are in a sense about politics. Let us assume that Clinton pardoned some people as a political thank you. How different is that from Ford pardoning the man who made him president? Perhaps far worse than any of these is Bush, who pardoned someone, perhaps in order to protect himself and his claim of innocence in Iran-Contra. No one called for a constitutional amendment at the time. No one urged an investigation; no one suggested the pardon was illegal or wrong. To some extent, I wonder if the complaints about Clinton are simply a carryover from those who disliked him. One more chance to "get" this guy; and of course in the end, one more failure at "getting" him, and his wife. This is not to defend the Rich pardon, or some of the others. The worst thing about the Clinton pardons is his failure over 8 years to issue pardons to people who have served enough time, and shown that they deserve a second chance. The parsimony of Clinton in issuing pardons ought to generate outrage.

    Others on the list (Bill Ross for example) have noted that there is a great value in the post-election pardon and commutation. It allows for the pardoning of the tough case, or at least the commutation of the tough case. Suppose, for example, there were some doubts about Terry McVeigh's guilt, or that a president truly did not believe in the death penalty. A McVeigh commutation to life without possibility of parole would be politically impossible until after the election. Yet, we can imagine such a commutation, in a similar case.

  • [March 2, 2001; 7:15 AM ET]
    Professor Bernard Hibbitts [JURIST Moderator]: Given Jack Quinn's testimony (and some of the questioning re: his obvious ethical dilemmas) before the House Committee on Government Reform yesterday, I'd be interested in what everyone makes of the Memo on Executive Clemency Policy that Quinn authored, as Counsel to the President, back in 1996, available on JURIST at:

    http://jurist.law.pitt.edu/pardonsex4.htm

    The Memo seems to have represented a departure from previous clemency practice, and arguably foreshadows some of the problems we're currently grappling with...

  • [March 2, 2001; 8:01 AM ET]
    Professor Brian Kalt [Michigan State]: Reading this memo, I think that Clinton has even more explaining to do. The memo says that the Justice department should take additional criteria into account, some that justify a pardon and some that justify denying one.

    The new criteria that Quinn/Clinton say should make a pardon more likely are: when the "a lone instance of criminal behavior in an otherwise exemplary life", minor cases where the criminal was very young at the time, and minor cases where the criminal has turned his life around since leaving prison.

    None of these apply in the Rich case.

    The criteria that Quinn/Clinton say should militate against a pardon are: major crimes like drug trafficking (crimes "so serious that the President will not consider granting a pardon for them under almost any circumstances"), and an extensive criminal history.

    Arguably the Rich pardon was for a "major crime." Carlos Vignali, the son of major donors and the man who paid Hugh Rodham almost $200,000 for working on his case, dealt a *lot* of drugs, and yet his sentence was commuted. To be sure, besides being well-connected Vignali was also a first time offender. But to me, nothing in this memo foreshadows or explains the controversial January 20 pardons.

  • [March 2, 2001; 8:45 AM ET]
    Professor Bernard Hibbitts [JURIST Moderator]: I think it's certainly ironic that several of Clinton's final pardons seem to fly in the face of guidelines set out in Quinn's memo, purporting to set out the President's general position on executive clemency. What caught my eye at the end, however, was this (Quinn to the Deputy AG):

    "As you and I have discussed, we would like to explore whether there are additional applications for clemency pardons in particular, that should be considered. We do not intend to imply by this that the percentage of applications approved by the President should necessarily be substantially increased. We would, however, entertain additional requests in order to determine if such an increase may be appropriate."

    It seems as if the White House was subtly expressing its willingness, for whatever reasons, to end-run - or at least reach beyond - the Justice Department and its traditional, perhaps somewhat laborious, pardon-review procedures. Is this the policy that so catastrophically came to fruition in January 2001?

  • [March 2, 2001; 11:35 AM ET]
    Professor Gregory Sisk [Drake]: Ford arguably paid the price for his pardon of Nixon, falling to Carter in the 1976 election. And that's just how it should work. Public accountability was in full force. Bush's pardon of the Iran-Contra group is subject to the same criticism as Clinton's, although Clinton of course multiplied the outrages by granting not just one set of questionable pardons but a whole and diverse series thereof, each representing a different abuse. I have always included the post-election Bush pardons as another example of why the exercise of the pardon power during that time-frame is dangerous. As for whether limiting the pardon power to the light of day, that is, when public accountability makes some things politically impossible, that's my point exactly. When Paul Finkelman talks about what is politically possible, I translate that into "public accountability." No president should have the power, immune from meaningful responsibility to the electorate, to impose his or her own version of the law without democratic accountability. While I am solidly opposed to the death penalty as public policy and on moral grounds, I think it would be outrageous for a president to unilaterally end the death penalty by pardons or commutations -- unless he or she was willing to take responsibility for those decisions at a point in time in which a political price can be paid and a public verdict thereby rendered.

  • [March 2, 2001; 12:12 PM ET]
    Professor Brian Kalt [Michigan State]: Greg says that "No president should have the power, immune from meaningful responsibility to the electorate, to impose his or her own version of the law without democratic accountability." But we let judges do that every day. The point of pardons is to allow exceptions to be made when the law is too rigid to do the right thing.

    When we elect someone, as with when we confirm a judge, it is based on our expectation that they will use their powers properly. Accountability may be achieved through exercises of foresight by the voters, not just hindsight. If this were not so, then any actions of a second term president would be, to some degree in Greg's calculation, less legitimate.

  • [March 2, 2001; 2:53 PM ET]
    Professor Ralph Stein [Pace]: I think it's fair to say that, ultimately, Governor Cuomo did pay the price for vetoing every bill reinstating the death penalty in N.Y. Mr. Clinton IS clearly paying a price for the questionable pardons. That it might not be a terminal price is another matter, one which will be weighed, perhaps, after most of us participating in this discussion are mindlessly drooling at some old age facility for academics. My chief problem with Greg's response above is that he assumes that what Mr. Clinton did was to "impose his...own version of the law." But I and a number of others in the Constitutional Law field believe that the law in this case, the Pardon Power, permits unfettered exercise of discretion by the President. Thus Mr. Clinton acted wisely but within the law. The same can be said about the decision to impeach him where I opined in a number of forums that the impeachment was legal but wrong.

  • [March 2, 2001; 3:00 PM ET]
    Professor Ralph Stein [Pace]: [replying to Brian Kalt] I agree with Brian but write for the benefit of those surfers following this exchange that there are critical differences between life-tenured Article III judge in the federal system and the President (or governor of a state). Life tenure for judges insures the ability (but not necessarily the reality) of their being free from political trends and pressures. A President can be elected for, at most, two terms. The ability to pardon at the end of a term is not an unintended consequence - it reflects a value, expressed by me and several others here - that justice and mercy may best, perhaps in some instances only, be dispensed when the President has nothing much to lose. I'm comfortable with that and accept that their are pardons I will disagree about and some that might strike me as outrageous.

  • [March 3, 2001; 10:24 AM ET]
    Professor Bernard Hibbitts [JURIST Moderator]: For everyone's information, former Pardon Attorney Margaret Love (1990-97) has joined our pardons discussion group; welcome! We're live on e-mail and - in case anyone has missed anything - on the Web at:

    http://jurist.law.pitt.edu/pardonslist.htm

    Back to all of you...

  • [March 3, 2001; 10:29 AM ET]
    Professor Brian Kalt [Michigan State]: I guess I have a question for Ms. Love followed by a question for everyone.

    It seems to me that the regular DOJ pardon process would necessarily rely quite a bit on personal testimonials from third parties. Given that fact, how common is it for the testimonial to get more weight if it is from a prominent person? If I wanted a pardon, and I got, say, Tony Blair in my corner, how much weight would this carry in the *regular* pardon process? What about Barbra Streisand?

    My question for the group is, how much weight *should* the prominence of the people vouching for you carry in the regular process?

    On an somewhat related note, the proposal to require formal pardon applications to be published in the Federal Register, while I think it wouldn't prevent problems like the recent unpleasantness, gave me an idea. Often in administrative law, ex parte communications must be docketed and placed in the record. Maybe it would be a good idea to do the same thing for pardons: place not just the application in the Federal Register, but a record/docket of who tried to influence the decision and how.

    While I'm on the topic, I was wondering what people thought about the following "patch" to the Federal Register proposal. My concern had been that there was no incentive for people to apply formally (in the Fed. Reg.) if they thought they could sway the president "informally". Why not put the burden on the president? Require the president to submit a full record of a pardon to DOJ, including all submissions, ex parte communications, etc. There would be a good faith exception for less-than-full submissions. Unconstitutional? Well, we could give the president an out, saying that in the alternative he could just submit an explanation of why he wasn't going to produce all ofthe records.

    I don't think that this would impede the president's ability to pardon, and so would not be unconstitutional. The president could still pardon whoever he wants, whenever he wants, with as much or little explanation as he wants. This would just make the process more transparent. The president could be either (1) open abut his actions; (2) closed but admittedly closed; or (3) closed but pretending to be open . . . and thus in violation of the law.

    Even if Congress doesn't do this, or if it is unconstitutional for some reason I am missing, the president could do it by executive order. A subsequent president could undo it, but would have to go on the record as opposing this accountability and openness.

    Is this proposal feasible? Would it help? And (Ms. Love) does it overlook some reality of the process?

  • [March 3, 2001; 12:49 PM ET]
    Professor James O'Reilly [Cincinnati]: I'm delighted that a true expert has joined this dialogue, and I have a question based on years of observing DoJ's relations with the White House staff. Is there a staff versus staff conflict between the career professionals who handle the DoJ pardon process and the soon-to-be-civilian overachievers from the political office at the White House, and to what extent does the arrogrance shown by Podesta et al. play out in the conscious decision not to involve the career staff? Podesta's terribly self-righteous performance on C-SPAN carries a Clintoneque hubris toward the career "expertise" of the DoJ. It is as if the retreating forces care not at all about the career staff's attention to details and regularities. Now that Ms. Love is a civilian herself I wonder to what extent this intra-branch conflict plays out in the pardon decision processes?

  • [March 3, 2001; 1:44 PM ET]
    Professor Ralph Stein [Pace]: Hmmm, is Jim asking leading questions? :)

    I was on a Senate subcommittee staff eons ago (Chief Investigator for Sen. Sam Ervin, Subcommittee on Constitutional Rights) and I certainly saw a different focus with regard to legislative staffers and Executive Branch types. I thought then and do now that that is normal.

    It's worth bearing in mind that the DOJ pardon people are lawyers but many of the staffers dealing with pardon issues aren't.

  • [March 3, 2001; 2:16 PM ET]
    Professor Ralph Stein [Pace]: I suspect Marbury v. Madison would be a good starting point to recognizing that a President can not be compelled, generally, to reveal with whom he consulted and about what. My idea of placing formal petitions for pardons in the Federal Register was based on two assumptions. The first is that the majority of those seeking pardons NEED to have a formal record as reflected by a DOJ analysis of their petition. The petitioners are, in the political sense, Nobodies from Nowhere. Secondly, the requirement to publish might act as a lawful but not necessarily effective chill on pardons that skirt the process (other than for National Security reasons) and might prove embarrassing later for that reason. But the President's unfettered right to pardon for any reason and through any investigative means, or lack thereof, would remain unchanged.

    With respect to some of my fellow contributors here, I increasingly get a sense (from various sources) that some people want the equivalent of a near foolproof system to remedy what I can't see as a serious systemic problem. Clinton screwed up big time. Most of us agree about that. His example looms over future Presidents few of whom, it's safe to say, will share his remarkable equanimity and bounce-backability.

    As to whether a President is more influenced by prominent persons in his social or political circle, the answer is "of course." Why is that different from any other setting? I've taught for over 25 years during which I've also been an active civil litigator. Judges before whom I appear often come to law school events. Is it surprising that a phone call from me or a colleague will get a student a clerkship interview? Or that former students who are partners in firms will interview someone I would like seen? Who do WE in the law school world most cultivate? Judges and very successful former students. Presidents enjoy, for the most part, being friends with celebrities. That's been true with every administration. With regard to a Tony Blair-type, a strong personal relationship, advantageous to U.S. interests, is enhanced when favors are granted.

    What IS remarkable, if we can pierce the fog created by the controversial Clinton pardons, is just HOW MANY snooks with no pull, no prominent friends and no money have been pardoned.

  • [March 3, 2001; 6:40 PM ET]
    Margaret Love, Esq. [former Pardon Attorney]: You all have a lot of good questions and observations. It may be that my testimony before the House Judiciary Committee last week will answer some of your questions and contribute to the conversation better than I can do in an e-mail (it's attached) [Moderator's Note: ... and on JURIST right here]. People who are REALLY gluttons for punishment can take a look at my article in 27 Fordham Urban Law J published last June, which traces the origins of the accident that happened on January 20 (not prescient at all - the ingredients were there from the beginning). There was a piece by Neil Lewis in last week's NYTimes Week in Review about pardon lobbying that is also very helpful. Finally, I have cut out Charles Krauthammer's op ed piece from Friday's Washington Post and tacked it on my wall.

    The short answer to your questions about the relationship between private lobbying and public process in pardon matters is that the President has been kept out of trouble and the influence of special pleading minimized over the years by having all pardon applications investigated and recommended up or down by the Attorney General. And by giving a lot of pardons to "little people" for manifestly good reasons. But there is no way to eliminate all back-dooring, and there will always be "'special deals" that the President does because he has some personal reason for doing so. But always in the past these were the exception not the rule, and most of the time nobody noticed.

    I know of only a handful of cases in the past 50 years that were not processed through DOJ: Nixon, Iran-Contra, and the Felt-Miller pardons in 1981 (they were 2 FBI officials who had authorized illegal surveillance of domestic terrorists - Reagan pardoned them almost immediately upon entering office even though his own Justice Department was still prosecuting their appeal).

    It seems clear that President Clinton felt in the end that he couldn't count on DOJ to deliver the work product he wanted (he said so several times publicly, and Beth Nolan said so again the other day at the Burton hearing), and so he just commandeered the advisory process in the White House -- where it was managed by a bunch of amateurs who evidently had very little appreciation of the historical use of the power or the kind of trouble the President could get into. They also didn't seem wlling or able to "just say no." Once pardoning was unmoored from the DOJ advisory process, there was no limiting principle or procedure to maintain even a semblance of fairness or regularity.

    That the President did not have a healthy support system to count on in pardoning is to some extent DOJ's fault, which has trivialized and disrespected the pardon power and its administration for over 20 years. Eric Holder was the last in a long line of DOJ officials (usually prosecutors) who effectively stifled the administration of the power, and so rendered it more or less hors de combat when the day of reckoning arrived. In this sense, the Clinton pardons were an accident waiting to happen. They were also an AWtoH in the sense that Clinton aggravated the situation by working around the DOJ process from the very beginning, and exercsied the power irregularly and infrequently until the very end of his term (I have this image of the "O my god I left the baby on the bus" cartoon -- though I think he has to be given more credit than that).

    I love to talk about pardons, any place any time. Also, we are planning an issue of the Federal Sentencing Reporter on clemency for next summer (articles due in May). I am looking for pieces that will put clemency into a justice context, hopefully one that will shed some light on how it relates to other early release mechanisms and how it should function in a determinate sentencing system. A long time ago pardon was the ordinary way people got out of prison before the expiration of their term; later, pardon gave way to its offspring, parole, and other mediating devices that softened the effect of a rigid legal system. Pardon also was responsible for the law's eventual recognition of equitable defenses like duress. But no one has written about the "patriarch of release procedures" since the 1939 5-volume study conducted by the Justice Department. (There is an excellent article by Messnger et al. on the "The Origins of Parole in California" but I don't know of any other similar study.). I am looking for someone who can write about how we have come full circle and, with the abolition of parole, must rely on pardon again to point us the way to a more just system of punishments. Any takers?...

  • [March 3, 2001; 10:29 PM ET]
    Professor William Ross [Cumberland]: In reply to Brian Kalt's question, "how much weight *should* the prominence of the people vouching for you carry in the regular [pardons]process?," I would say "little" or "none".

    Friends and acquaintances of a felon, prominent or otherwise, are unlikely to have knowledge that is relevant to a pardon. Even mass murderers and war criminals often are reputed to be polite to their neighbors and kind to animals. This point, of course, was made most tellingly by Hannah Arendt in her analysis of the "banality of evil."

    Moreover, prominent persons are no better judges of character than anyone else. They obviously are trotted out for the purpose of impressing (and perhaps trying to intimidate) the officials who are considering the pardon. If they are not intimately acquainted with the person, their opinions are useless. The use of "big names" in the pardons process calls even more attention to the danger that obscure persons will not receive fair consideration in their application for pardons.

    In theory, I like Brian's proposal to require the President to disclose the names of persons who communicated with him about a pardon. This could help to discourage influence-peddling and sundry corruption, including bribery. It would also make the President more accountable insofar as the influences to which he was subjected would be manifest for all to see. Although I agree with Brian that this might be constitutional to the extent it does not interfere with the essence of his pardon power, I am not convinced that it would not raise significant separation of powers problems. I agree with Ralph Stein that Marbury would be the starting point (but hardly the end) of an analysis of this difficult subject.

    Moreover, I'm skeptical that Presidents would actually abide by a law requiring ex parte communications to be entered in the Federal Register. A President who was willing to disregard the law could easily conceal such communications, and I fear that many Presidents would do this, either overtly or through self-serving interpretations of the statute's definition of ex parte communications.

    As for Ralph Stein's reminder that Clinton pardoned many persons who lacked testimonials from the wealthy and well-connected, it is my understanding from Margaret Love's law review article and from congressional testimony by Ms. Love and other officials that Clinton pardoned fewer such persons than most of his predecessors and that Clinton, unlike previous Presidents, failed to dispense pardons on a regular basis pursuant to the Justice Department's on-going consideration of pardon applications from persons from all walks of life, leaving a backlog of 3000 applications. If this is not accurate, I welcome clarification from Ms. Love.

  • [March 3, 2001; 10:57 PM ET]
    Professor Ralph Stein [Pace]: One of the first cases I cover when I teach Criminal Law is United States v. Bergman. Bergman was a White Collar criminal, an owner of nursing homes who ripped off both the federal government and New York State. He took a federal plea in satisfaction of charges in both jurisdictions and the only question was the sentence. In his opinion Judge Frankel spoke at length about the very many letters he had received extolling Bergman as a philanthropist, a rabbi, a benefactor of the community. Given the range of punishments possible, Judge Frankel gave the fraudster a few months. The letters clearly played a role.

    Recently, in Westchester County where my school is located, federal judge Barrington Parker, Jr., was virtually inundated by letters seeking the minimal sentence possible for the husband of the county' district attorney, an income tax evader (big time).

    Not too many letters crying for leniency are sent on behalf of the weak (once they're caught) and non-influential.

    People seeking pardons who have high level political, social or economic connections will always seek support from such people and there is no way to stop a President from listening to such folks. I can't think of a good reason why someone well connected looking for a pardon has any less right to marshal support from those likely to have the ear of a President than a person marshaling all the support he/she can to influence a judge to impose a light sentence. It's what the judge and the President DO that ought to command attention and criticism when wrong decisions are discerned.

  • [March 4, 2001; 11:15 AM ET]
    Professor Paul Finkelman [Tulsa]: I would follow up on Brian Kalt's question about whether the "testimonial [does] get more weight if it is from a prominent person?" This is a more specific question to Ms. Love. It is about the Prime Minister of Israel, who allegedly intervened for the Rich pardon; does this matter, has it mattered in the past. Have foreign leaders intervened often?

    Should it matter is a more of a philosophical question. If the P.M. of a close ally asks for special treatment, perhaps that is the sort of foreign policy issue that we should defer to a president. We do that with spies, in the sense of trading one of theirs for one of ours (that is how we got Gary Powers back in the '60s); why not pards as part of foreign policy for good will to allies who do many good will things for us?

  • [March 4, 2001; 1:20 PM ET]
    Margaret Love, Esq. [former Pardon Attorney]: In response to Prof. Finkelman, it is of course relevant that the person vouching for your good character is a person of standing in the community, whose judgment can be relied on. How could it be otherwise? I also agree, however, that the recommendations should be submitted pursuant to an orderly process, and taken into account by the Justice Department in reaching its recommendation. It is futile to try to prevent influential people from doing what they are accustomed to doing (see, e.g. the article in this morning's Post about the numerous plugged in people who recommended William Fugazy, including Rudy Giuliani, Charles Rangel, Bernie Nussbaum, Robert Morgenthau, and the late Cardinal John O'Connor. Fugazy was represented by Andy Maloney, former US Att'y in Brooklyn. I'm sure the President was impressed by all of these endorsements. However, it might also have been helpful for him to understand that he was being asked for foregivensss by an individual who was wholly unrepentant ("I don't think I did anything wrong. I think I was entitled to [a pardon.]") O well, whatever.

    Yes, foreign policy considerations have been factored into pardon decision-making -- there are the spy swaps to which you refer (of which there have been several in modern times) and other less well-known cases where a President commuted the prison sentence of a foreign national as a favor to a foreign head of state (you can find one of these among the Reagan commutations).

    Incidentally, I have been interested to see the name of Orlando Bosch surface as an instance of an abusive Bush clemency action. His sentence was not commuted, but rather he was released by the district court pursuant to a government motion. As to the "Pakistani heroin king" Aslam Adam, he was a low level mope who had spent 9 years in prison who was recommended for early release by the Director of the federal Bureau of Prisons on grounds of his deteriorating mental health (he was wasting away from depression at Butner). We concurred in the BOP recommendation, and Adam was released and deported immediately to his native country. (I have told this to two reporters at Rolling Stone and yet the magazine insists on depicting this case as evidence of a Bush connection to an international heroin conspiracy.) The idea that either of these cases documents abuse in the exercise of the pardon power by President Bush is just silly. But I guess the other is a better story.

  • [March 4, 2001; 5:40 PM ET]
    Professor Brian Kalt [Michigan State]: I would be more willing to defer to Clinton on foreign policy if I thought that was why he did it. Why Rich and not Pollard?

  • [March 4, 2001; 6:27 PM ET]
    Professor Paul Finkleman [Tulsa]: Why not Pollard; beats me; the argument being made is that Pollard was too costly (althought it is hard to know why) and that Rich, who had strong support in Israel, was an easy pardon; not in the US now, not likely to come back, did not do anything to threaten national security, did not kill anyone; just stole money and made money (I realize that "trading with the enemy" might be construed as more than this, but I am trying to see it from the perspective of the White House), and thus, Rich was an easy pardon which pleased a very loyal ally. I am not arguing for this interpretation, but offering it as a best case scenario for why he was pardoned.

    Why not Pollard remains a major question in my mind.

  • [March 4, 2001; 7:36 PM ET]
    Margaret Love, Esq. [former Pardon Attorney]: It's true that Clinton granted disproportionately fewer pardons to "little people" but that is partly due to the fact that DOJ wasn't recommending very many -- so all he had to work with were the ones who got their cases in at the very end through the back door!

    As to recommendations from eminent people, I always found them helpful -- assuming of course that they were personally acquainted with the petitioner and/or his case. In context, where rehabilitation and reputation in the community are important considerations, it is useful to have testimony to this effect from substantial members of a petitioner's community.

    I do not think the Framers would have approved legislative or other efforts to micromanage the pardon process, and in my experience they are generally counterproductive. (E.g., Eisenhower instituted a "goldfish bowl" policy at the beginning of his term, after several Truman end-of-term grants were criticized, but it didn't last very long.) The Framers fully anticipated that the pardon power could be abused by an untrustworthy President, and left it up to the electorate to take appropriate measures in the event that happened. It would have been helpful if someone had taken notice of President Clinton's peculiar pardoning practices before the very end of his term when it was too late.

  • [March 5, 2001; 5:39 PM ET]
    Professor Brian Kalt [Michigan State]: One thing that I'm not sure what to think about is the pardon of the four Hasidic New Yorkers. I think that it is distasteful to pardon people in exchange for their political support, and so if that is really what happened I oppose those pardons. However, I'm not sure that it is illegal to do so. Am I missing something?

  • [March 5, 2001; 7:06 PM ET]
    Professor Ralph Stein [Pace]: Nope. This is a particularly disgraceful situation that has to be understood in a broader context. The Hasids (there are different groups each under the autocratic control of a "rebbe") vote as a block. In New York City and two upstate counties, Rockland and Orange, there are large Hasidic communities whose votes can determine local elections and influence statewide contests. One center of Hasidic territory is the Village of Kiryas Joel which I'm sure all Constitutional Law professors know well. Issues of accommodation of this branch of Judaism have been both serious and non-controversial. For example, police in Orange County have been instructed not to take either offense or action if a female member of that county's Hasidic community will not accept a traffic summons from the hands of a male officer. The police are now instructed to simply put the summons under the windshield wiper.

    Obviously, Mr. Clinton will never state that his pardon of the Hasids was in exchange for their support or, more accurately and importantly, that of the community to which they belong. That is exactly what happened here. Even assuming one can prove that, I know of no statutory violation. The issue with the Hasidim goes beyond seeking the support of the pardoned persons who, in fact, are nobodies beyond being White Collar criminals. It is using the pardoning power to obtain the directed, indeed commanded, support of a bloc that can and does influence elections. In that sense the political process is truly corrupted.

  • [March 9, 2001; 10:45 AM ET]
    Professor Bernard Hibbitts [JURIST Moderator]: I'm pleased to welcome Dan Kobil of Capital University Law School to JURIST's Presidential pardons discussion list. I know several of you are quite familiar with Dan's extensive scholarship on pardons, and I look forward to his participation in our colloquium as the pardons controversy continues...

  • [March 9, 2001; 4:13 PM ET]
    Margaret Love, Esq. [former Pardon Attorney]: I have a question for Dan: I understand that you have done some research into President Bush's pardoning practices as Governor of Texas, and that he apparently became wary of pardoning when he was "burned" by one of his early grants. Is this true?

  • [March 10, 2001; 9:37 AM ET]
    Margaret Love, Esq. [former Pardon Attorney] Here is an article that appeared in this morning's Washington Post that I thought you all might find interesting. This is the first time Fred Fielding and Boyden Gray have gone on record about the way pardons were handled during the Reagan and Bush administrations. George Terwilliger makes a cameo appearance in connection with a grant made at the end of Elder Bush's presidency. John Stanish tells some stories about pardon practice during the Carter administration. The paper itself contains an interesting chart of pardoning patterns since the Nixon administration which I wasn't able to capture.

    I am not holding my breath for the first Young Bush grants -- the DOJ review process appears to have more or less collapsed, so I guess it will be some time before the assembly line can start functioning again. I understand that there are presently over 4000 clemency petitions pending in the office of the Pardon Attorney, a majority of them from people seeking release from prison.

  • [March 10, 2001; 10:30 AM ET]
    Margaret Love, Esq. [former Pardon Attorney] The URL below is a link to a fascinating story from today's Times about a 14-year-old sentenced to life in prison for murdering a 6-year-old -- and about the efforts of all involved, including apparently the prosecutor, to have Governor Jeb Bush commute the sentence. This reminds me of the story in the about the 12-year old who caused the death of a younger child by accidentally pushing her into a cauldron of boiling water -- her sentence was commuted by a 14th century English king, a classic instance of "exceptions in favor of unfortunate guilt." Will Governor Bush follow suit? Stay tuned!

    I promise to stop bombarding you with pardon stories - but this just seemed to good to pass up!

    http://www.nytimes.com/2001/03/10/national/10SLAY.html?pagewanted=2

  • [March 10, 2001; 5:00 PM ET]
    Daniel Kobil [Capital] In response to Margy's question, it appears that George W. Bush was a pragmatic and parsimonious pardoner when he was Governor of Texas. According to newspaper accounts I have reviewed, as Bush neared completion of his first term in office in 1997, he had pardoned only 14 people-and no blacks--compared to 70 for Democrat Ann Richards, 290 for Republican Bill Clements, and 493 for Democrat Mark White. In 1997, as he considered a run for the presidency, he created controversy when he refused to pardon a black man who had served 12 years in prison for a rape that DNA tests had proved he had not committed. Some attributed his unwillingness to grant clemency to politics, pointing out that one of the few pardons he did grant went to a woman who, along with her family, had heavily contributed to Republican lawmakers who interceded on her behalf. (Does this sound familiar?) Others speculated that his stinginess with clemency was explained by a bad experience he had had granting clemency in 1995 to a former police constable who pled guilty to stealing cocaine from a drug bust shortly after Bush had pardoned him for a marijuana offense.

    Governor Bush denied that politics played any role in any of his clemency decisions. He explained: "I've got very strict standards for pardons . . . We don't pardon anybody that committed a violent crime." Other reports indicated that Bush would not even consider setting aside or pardoning convictions for any sexual offense, child abuse, capital offense, crime involving the use of a weapon, repeat offense, sale of narcotics, or possession of a large amount of drugs.

    In view of this history and the clemency controversy that has enveloped his predecessor, I continue to doubt that President Bush will be willing to use the clemency power very often, if at all. This does not bode well for the more than 3,000 clemency applicants still awaiting action on their petitions.

  • [March 11, 2001; 2:55 PM ET]
    Margaret Love, Esq. [former Pardon Attorney] Thanks a lot, Dan, for your depressing news about Bush the Pardoner. I wonder if he will consider clemency for someone like Will Harrris, a white collar offender whose case was described in the Post
    this morning.... Harris has done 7 and a half years, followed all DOJ procedures and had lots of substantial people vouching for him. Will he have to do 7 and a half more? And if Will Harris has to, certainly the thousands of little drug offenders will have to. Probably Will Harris will have a life of sorts when he gets out, but what about the people who didn't have much of a life to begin with? This federal sentencing system is entirely insane.

  • more to come...
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HOSTED BY:

U. of Pgh. School of Law

ROUNDTABLE
Prof. Garrett Epps
University of Oregon School of Law;

Prof. Paul Finkelman
University of Tulsa College of Law;

Prof. Brian Kalt
Michigan State University - Detroit College of Law;

Margaret Love, Esq.
former Pardon Attorney, U.S. Department of Justice, 1990-97;

Prof. Calvin Massey
Boston College and the University of California, Hastings College of the Law;

Prof. James O'Reilly
University of Cincinnati College of Law;

Prof. William Ross
Cumberland School of Law, Samford University;

Prof. Gregory Sisk
Drake University Law School;

Prof. Ralph Stein
Pace University School of Law; and

Prof. Bernard Hibbitts [JURIST moderator]
University of Pittsburgh School of Law.