Who's On the Pardon Menu?
Mary Maxwell, Ph.D
Marblehead - It is the season to start predicting who might be the lucky recipients of 2008-9 pardons.
The Constitution allows a president to pardon any person of any crime against the United States. Governors have a similar power for state crimes, though in some states they are required to take advice from an executive council or a state legislature. Between now and Jan. 20, 2009, we can expect President George W. Bush to use his virtually unlimited power of pardon.
Can a president pardon members of his or her own family? Yes. Nepotism is frowned upon, but constitutionally there is nothing to prevent a family gift of pardon.
Can a president pardon himself or herself? No. The framers of the Constitution developed their ideas from English common law, and there is no tradition of self-pardon there. In our system, it would be seen as claiming that the president above the law.
Can a prospective pardon be given to a person that has not yet been convicted of, or even indicted for, federal crimes? Yes. Ford pardoned Nixon that way in 1974. The elder President Bush followed suit by pardoning the not-yet-convicted secretary of defense, Caspar Weinberger, on Dec. 24, 1992. It was assumed that he did so because a hearing on the Weinberger case that was scheduled for February 1993 may have revealed the crime of drug importation in the Iran-Contra affair.
In that instance, leaders in Congress, including Speaker of the House Tom Foley, D-Wash., and Tip O'Neill, D-Mass., were consulted before the pardon was given. According to the Washington Post of Dec. 29, 1992, Foley said he would not recommend a pardon for Weinberger but would not speak against it — an unusual instance of cross-party cooperation!
When our Constitution was being drafted in 1787, and also when ratifying conventions were held in the original 13 states in 1789, much was made of the fact that it is wise to have a provision for mercy, by way of executive pardon. This is not to say that our forebears were unaware of mischievous uses to which the pardoning power could be put. Delegates from Virginia and Pennsylvania wanted to prohibit pardon in cases of treason. They were outvoted, however, and so the wording of Article II, Section 2, is “The President… shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
The end of each administration, in mid-January, sees the main presidential handout of pardons. At that time, however, little publicity is given to it, as the upcoming inauguration of the new president holds center stage. One exception was President Bill Clinton’s pardoning of the tax fugitive Marc Rich in January 2001. Many op-ed pieces were written about it, and the late Barbara Olson expressed her outrage in book form, “Final Days.” (Incidentally, Rich’s lawyer was Lewis Libby, who received a controversial reprieve of his sentence by President Bush in 2007 for the crime of leaking the identity of CIA officer Valerie Plame.)
Because the Framers made the pardon power an exclusive executive function, with no limitations, the only way we can change it is by constitutional amendment. Congressman Barney Frank, D-Mass., once proposed an amendment restricting the president from granting pardons after the November election date. In other words, he or she should have to calculate the political consequences of granting scandalous pardons. This seems a very sensible amendment, but it failed to pass the first hurdle, that of getting a two-thirds majority vote in the House.
Another worthwhile amendment would be one that says no pardon discovered posthumously will be honored. It is a constant worry that a president is vulnerable to assassination, not to mention death by natural causes. What if President Bush died tomorrow and then new president Dick Cheney or a White House aide found in a vault a signed, sworn and witnessed statement by George W. Bush pardoning so-and-so? We would have no way of knowing whether coercion had played a part. Fortunately, an affidavit whose signer is not available for cross-examination is considered legally useless, so it is unlikely that anyone would try to legitimize a posthumous pardon.
As for who will be given mercy in the next two months, we wait to see.
Mary Maxwell of Marblehead, a political scientist, is the author of several books, including “Morality Among Nations.”