President Richard Nixon and Gerald Ford, shown in October 1973. Richard Nixon appointed Ford Vice-President in December 1973 following the resignation of Spiro Agnew. After the Nixon resigned in August 1974, Ford became President and on September 8, 1974 issued Proclamation 4311 which gave Nixon a full and unconditional pardon for any crimes he may have committed while President.

Pardon Me!

-- Ben Burrows

The New York Times recently reported that “Felons are asking President Bush for pardons and commutations at historic levels as he nears his final months in office, a time when many other presidents have granted a flurry of clemency requests.” James Ross in Salon.com speculates, “don't be surprised if some time before Inauguration Day 2009, President George W. Bush issues a blanket presidential pardon to ensure that those who organized and implemented brutal interrogation techniques such as ‘waterboarding’ (a terrifying simulated drowning) are never hauled before the courts. A pardon would prevent future administrations from ever prosecuting those responsible for torture and other mistreatment at Guantánamo Bay and secret CIA detention facilities elsewhere overseas.”

Such speculation is not without foundation. The proliferation of pardons for members of the president’s administration -- or for members of an administration in which the president served in another capacity – has been a recent and self-serving innovation of the past century. The use of the pardon and reprieve power, in advance of a conviction in court, has been used to suppress Congressional investigations, and to prevent the introduction of evidence to federal grand juries. Bill Clinton’s infamous Marc Rich pardon forgave a financial swindler, whose ex-wife had contributed to his and Gore’s presidential campaigns.

I have been troubled since the Nixon pardon, with the proliferation of broadly based pardons and clemency for which no specific crime is specified, and for which there have been no criminal convictions:

Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.

This pardon is flawed in at least three ways:

• That no specific criminal conviction is being alleviated through such a pardon. Historically, pardons were granted by royalty to those wrongly imprisoned, or those sentenced overharshly. A pardon for unspecified crimes, or for crimes which have not reached conviction, is more an indulgence (like those granted by the Catholic Church to aristocrats in the Middle Ages) than a pardon.
• That a President should be able to pardon a member of his own administration, or of an administration in which the granting President has served. Such pardons are inherently corrupt, and work against the rationale for the pardon power which Hamilton and Madison described in The Federalist Papers.
• The Founders saw the pardon power as an alternate route to justice for the powerless, who had no resources to fight their case through the courts, but who might yet appeal their case to the President. The application of this power for the rich and powerful to avert investigation actually undermines justice, and the people’s faith in the law, rather than open up an alternative road to justice for the powerless.

NOW, THEREFORE, I, GEORGE BUSH, President of the United States of America, pursuant to my powers under Article II, Section 2, of the Constitution, do hereby grant a full, complete and unconditional pardon to Elliott Abrams, Duane R. Clarridge, Alan Fiers, Clair George, Robert C. McFarlane, and Caspar W. Weinberger for all offenses charged or prosecuted by independent counsel Lawrence E. Walsh or other members of his office, or committed by these individuals and within the jurisdiction of that office.

Special Prosecutor Walsh reported that this pardon allowed Weinberger and others to destroy evidence presented during the discovery phase of the Iran-Contra grand jury. This effectively prevented the prosecution of a vast criminal conspiracy, which took Walsh over a year to build at great public expense.

Sadly, Republicans are not the only presidents to abuse the pardon power. TIME Magazine cataloged the 10 most notorious pardons in United States history --- which included the Clinton pardon of billionaire fraudster Marc Rich. What made the Rich pardon corrupt was not Rich’s participation in a Clinton government, nor was the bill of forgiveness for vague unspecified crimes, issued before any court had reached a conviction. What made the Marc Rich pardon corrupt were the generous campaign contributions of Rich’s relatives to the Clinton and Gore presidential campaigns. Such wide-ranging machinations are difficult to put into the language of constitutional principle, and may be difficult to write into a broad and general law which does not itself turn into a bill of attainder.

We are once again nearing the end of an administration whose deception and conspiracy against the American people has injured our image of ourselves as a free and democratic people, and has burdened our children with debts and entanglements they may never be able to untangle. President George W. Bush has already shown with his clemency of I. Lewis Libby that he will leave no stone unturned to prevent his own prosecution, or that of his administration compatriots.

The pardon power of the President is not limited by the Constitution, except in matters of impeachment:

he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

Those of us concerned with the misuse of this power for self-protective indulgences have few options. If, however, we have a two-thirds Democratic majority in both houses of Congress, there are some strategies which might apply between January 3, when Congress begins its session, and January 20, when George W. Bush leaves office:

Congress could pass a constitutional amendment,

• limiting the President’s pardon power, to prevent “indulgence” pardons ahead of an actual conviction
• providing for Congress to nullify a pardon or clemency on grounds of corruption, with a 2/3 majority in both houses.
• declaring that pardoning appointees or cabinet members of the sitting president, or of an administration in which the president had previously served, are inherently corrupt, and need not be overridden by Congress to be declared invalid in court.

This would require lengthy ratification by the state legislatures, and so may not take effect in time to limit Bush’s prerogative. This kind of constitutional amendment ought to be a bi-partisan no-brainer. It is time to stop self-serving indulgence pardons. It is time to stop corrupt crony pardons. It is time to stop “Godfather” pardons for favors to Dom Presidente, as if we were some kind of banana republic.

There may yet be other solutions than a constitutional amendment, but that discussion will have to wait for another time.

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