PRESIDENTIAL PARDONS

PRESIDENT CLINTON, CAN YOU FEEL MY PAIN?

Ralph M. Stein
Pace University School of Law

Replete with a hasty and confusing correction accentuating the sloppiness of his attempt to explain and justify the more controversial of his exit-pardons, President Clinton's New York Times op-ed of 18 February raises more questions than it answers. For those of us who teach Constitutional Law (but probably have never covered the Pardoning Power or even given it much thought) the obligation to understand and now engage students about the architecture, history and employment of a final and unreviewable presidential option is, well, clearly upon us.

The nature of the power to pardon is not in serious dispute - calls for its abolishment, or severe curtailment, by Constitutional Amendment will be relegated to the same dustbin wherein lie scores of proposed alterations to the seminal document (including the remarkably short-lived call to get rid of the Electoral College). Since the power is wholly discretionary, devoid of enforceable normative standards, final and reviewable only by those lacking any power to prevent its employment, the real issue is the need to debate and have discourse about the moral and ethical basis whereby presidents ought to exercise this extraordinary authority.

The Framers of the Constitution didn't have to look far for a model for the Pardoning Power. In its new and constitutionalized form, it was the direct descendant of the English sovereign's prerogative to dispense mercy, originally by his own hand, later through a functionary whose role would lead to the establishment of Chancery Courts and the doctrine of equity. The power to pardon is part of our network of checks and balances. Where the legislature can not or will not provide relief from unfairness, where the laws do not allow courts latitude to correct discernible and individuated suffering meriting relief, a chief executive (the President or state governors) is a possible safety valve.

The willy-nilly granting of pardons is burdensome, unacceptable to the public and an undermining of enacted laws and their administration. Selective granting of pardons may well serve, as Justice Holmes noted, the public welfare. A number of Mr. Clinton's pardons diminish public welfare, erode belief in the Pardoning Power as an important policy tool and create very understandable cynicism, only some of which is partisan in nature.

What Mr. Clinton, with his legalistic explanation citing to (some questionable) pardons by his predecessors and raising the bulwark of presidential power, fails to understand is the importance of one of the central tenets of judicial and lawyer ethics: the appearance of impropriety is as bad as the actual occurrence of misfeasance. Assuming that his explanation is truthful, I have to wonder if Mr. Clinton was sleepwalking through his last days as a two-term president who had to know that his reservoir of public trust was at the severe drought stage. Constitutional power notwithstanding, his Op-Ed explanation and very muted expiation (acknowledging only minor errors, such as not consulting with a U.S. attorney about Mr. Rich's case) does nothing to settle the questions raised or to make even a straight-face argument for the Rich pardon as well as for several others.

Future presidents ought to consider the following when contemplating granting pardons. The granting of a pardon is, or ought to be, educative in that it may point out how mercy can temper the rigorous application of the law. The granting of a pardon is, or ought to be, ceremonial in that it exalts the power of the Chief Magistrate (as the President was often referred to in the earlier history of the Republic), acting on behalf of the nation, to do good through the exercise of not unquestionable but ethically unsoiled judgment within the three-branch governmental matrix.

William Jefferson Clinton has neither educated nor exalted the highest office in the land. His explanation is weak, disbelieved by many and certain to remain a lasting stain on his often brilliant presidency.

February 21, 2001

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Discussion

• Dear Mr. Stein,

  Why would you bother to speculate on Mr. Clinton's truthfullness? ("assuming that his explanation is truthful") The man lied under oath, with God as his witness. How can one assume his truthfullness in any matter? Why bother wonder- ing? Simply assume he's lying all the time!

  Donald Howell
  New Jersey

• I could not agree more. I believe the pardon of Nixon was a travesty of justice and I feel that Clinton's pardons are simply a misuse of power.

  Abdul Rastager
  Boston, Mass.

• The latest round of presidential pardons by Mr. Clinton only serves to once again point out how untrue the initial view of our founding fathers that an individual may better judge the justice system than those entrusted to dispense justice. It is time to take the right of pardon away from all presidents.

  Phil Friess

• Diogenes where are you? Your editorial is right on. The masses are so stupid.

  Carolo Collins
  Salem, Oregon