President George W. Bush's decision to commute the prison sentence of vice-presidential aide I. Lewis "Scooter" Libby has made people wonder how President Bush could simply wave his magic wand -- and poof! -- Libby no longer has to set foot inside a prison cell. After all, Libby was tried and convicted of perjury and obstruction of justice.
The answer is simple. Because he can. President Bush, like every president before him, has the unique ability to override the justice system, release anyone he chooses from paying a fine, and return a person to the state of innocence he had before he ever committed a crime.
The president isn't required to explain or justify his actions to you, me, Congress or anyone else for that matter.The power to pardon is left solely to the discretion of the president, and cannot be reviewed or overturned by any of the other branches of government. So why do presidential pardons raise so many eyebrows?
Perhaps it's because, in our government of separated and balanced branches, this unique power stands out like a sore thumb -- a president in full-pardon swing more resembles a king than an elected official. In fact, the basis of the presidential pardon can be found in the royal Prerogative of English Kings (more on that later).
So where does this power come from? Why did it make it into the Constitution? What does it do and how exactly does it work? In this article, we'll answer these questions and look at some noteworthy presidential pardons.
The president is an elected official, and Americans live in a free society. So, when he grants an unpopular pardon, the public feels free to complain. President Bush was reminded of this after Libby's commutation, and countless other presidents have received feedback on their decisions as well.
President Gerald Ford is widely considered to have lost the 1976 election by pardoning his predecessor, President Richard M. Nixon; President Bill Clinton was nearly indicted for one of the 459 pardons he issued during his two terms in office. But ultimately, when granted appropriately, there's no way to block or even review a presidential pardon.
When dealing with a political tool as powerful as this, debate over its use is guaranteed to arise in the other branches of government. Congress often bites its collective tongue in frustration during pardon season, which tends to come hardest and fastest late in a president's final term. Yet, deep down every Congressman knows that the pardon is untouchable: It would take a constitutional amendment to make any change to the pardon power.
Article II, Section 2 of the Constitution gives the executive officer of the United States the power to pardon. The wording is at once succinct and sweeping: " … [the president] shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment [Source: USConstitution.net]."
In the next section, we'll look at a few cases of presidential pardons, including Patty Hearst and Tokyo Rose.
Pardons: Famous, Infamous and Otherwise
There have been thousands upon thousands of presidential pardons granted over the centuries since President George Washington took the oath of office. The vast majority is less than noteworthy, and as a result, flies under the public's radar. Some, however, seem ready-built for public attention and can read like an article from a tabloid.
Take President Bill Clinton. He came under fire when he pardoned tax evader Marc Rich, who is best known for leaving his 1040 blank to the tune of nearly $50 million. Clinton, whose presidential library received a donation by Rich's ex-wife, pardoned Rich while the businessman was living in Switzerland [Source: Time].
Democrats aren't the only ones subject to scrutiny for their pardons. Long before his son's pardon of Libby was bestowed, Republican president George H.W. Bush generated ire when he pardoned Caspar Weinberger, the man who served as Secretary of Defense while Bush served as vice president. Bush pardoned Weinberger, who along with others, had been convicted for illegally conducting arms sales with Iran, which was using the profits to fund the Contra rebel guerilla army in Nicaragua.
When President Andrew Johnson pardoned soldiers who had fought for the Confederacy during the Civil War, he included a list of exclusions that kept just about any moneyed Confederates from being eligible for the pardon [Source: Encyclopedia Britannica Online].
One little known pardon is that of Arthur O'Bryan. President Abraham Lincoln pardoned the Washington D.C. man after he was convicted of attempted bestiality. The man was released because Lincoln felt the man had led an otherwise exemplary life, and because the man had been drunk at the time of the offense [Source: Lincoln Archives].
Some well-known pardons, like Patty Hearst's, continue to fascinate us. Granddaughter of publishing magnate William Randolph Hearst, Patty Hearst was kidnapped in 1974 by the then-unknown radical group, the Symbionese Liberation Army (SLA) and claimed to have been held for weeks and brainwashed. That same year she assisted the SLA in bank robberies and other crimes until the urban guerilla group's location was discovered by police. At her trial, Hearst maintained she participated in the criminal activities under psychological and physical duress, but was sentenced to seven years in prison. She served two years of her sentence before it was commuted by President Jimmy Carter, who later asked President Bill Clinton to pardon Hearst. Clinton pardoned her in 2001.
Eugene V. Debs was a presidential candidate for the Socialist Party five times: in 1900, 1904, 1908, 1912 and 1920. His last race was conducted behind the bars of the federal penitentiary in Atlanta, where he managed to garner nearly one million votes. Debs had been convicted of treasonous speech under the Espionage Act for speaking out against the American involvement in World War I. He was sentenced to 10 years in prison in 1918. Debs was released in 1921 when President Warren Harding issued a blanket pardon to anyone convicted under the Espionage Act. The president asked Debs to drop by the White House after his release so Harding could meet him.
Iva Ikoku Toguri received a pardon from President Gerald Ford, and the apologies of the nation. Toguri was one of several women who took turns reading Japanese propaganda on Radio Tokyo's "Zero Hour" program under the alias Tokyo Rose. But Toguri was the only American of the bunch and was convicted of treason after World War II, serving 10 years in prison. Decades later, after a reporter began investigating her case further, it was exposed that the charges of treason against her were trumped up and largely false, initiating the pardon from Ford.
But how can a pardon take someone who has been convicted of crimes against her country and, after 30 years, replace her status as an innocent person? In the next section we'll find out exactly how a pardon accomplishes this.
What a Pardon Does
To fully understand what a pardon does, first consider that when a person is convicted of a felony, he loses his civil liberties -- the right to vote, serve on a jury, own a firearm. Living without certain rights is referred to as civil disability.
What a pardon does is restore these rights. Customarily, an individual's civil abilities are restored through a pardon after the person has served his prison sentence or paid his fine, but not always. (President Nixon was pardoned by President Ford before charges were even filed against him.)
Clemency is the term for the action taken by the president in a pardon. It can be any action of mercy granted to an individual convicted of a crime that has some affect on the conviction or sentence. Acts of clemency include the president's power to pardon, commute and give respite and remission.
Each of these forms of clemency has its own affect on the legal status of an individual who has been granted clemency. Commutation, for example, shortens or abolishes the sentence. Yet it leaves intact the civil disability attached to the individual's status as a citizen. Commutation is considered fairly rare by the Department of Justice, and has not been frequently used by presidents in the past [Source: U.S. Department of Justice].
A full pardon places the legal and civil status of the convicted back to where it was before the crime was committed -- it's as if the crime never took place, as far as the law is concerned. A case in the 1990s (U.S. v. Noonan), did establish that the records of the conviction still remain, though. The full pardon gives the president the ability to release an individual from prison, as does a commutation.
There is also the conditional pardon. Under this circumstance, a president may issue a pardon in exchange for something in return. In 1902, President Theodore Roosevelt issued a blanket pardon to all who had taken part in the insurrection in the Philippines, then an American territory. However, those receiving the pardon were required to swear an oath "accept the supreme authority of the United States of America in the Philippine Islands [Source: Shanor and Miller]." President Richard Nixon gave Teamsters racketeer Jimmy Hoffa a conditional pardon in exchange for Hoffa's pledge to never again take part in labor organization [Source: Time].
Remission is the act releasing a person from a legal obligation. An example of this is to release a person from a fine he was sentenced to pay. This applies only to fines levied against an individual as the result of a federal case.
The final act of clemency the president is allowed under the pardon power is the respite. This is a short-term action -- lasting only a month or two -- and allows the president to put off a sentence. It's not a legal reflection on an individual's guilt or innocence (like the pardon) and it doesn't interfere with a trial. Instead, the respite can keep the individual from going to prison or keep him from being executed. Usually, the purpose of a respite is to buy time to allow further consideration of a pardon petition. Respites can also be issued in succession as they expire.
Now that you know what tremendous power the pardon and other forms of clemency have, read on to learn about the limitations of pardons.
What a Pardon Does Not Do
Despite being such a broad and unique power, presidential pardons do have limitations.
Any elected and appointed official of the United States is subject to removal from office by impeachment [Source: University of Missouri-Kansas City]. With a simple majority (50 percent of the vote, plus one extra vote) the House of Representatives can impeach an official, and the article of impeachment is sent to the senate. In the Senate, the decision to remove the impeached official from office is also made with a simple majority vote.
The Constitutional framers chose to allow impeachment proceedings not just for those holding office, but for officials who have previously held office. This second method of impeachment results in the former official being banned from holding any office again.
The impeachment process is excluded from the scope of the president's pardon power because the president can also be impeached. A discussion by the framers over the potential for the executive gaining absolute power was resolved by the threat of impeachment. The framers reasoned that if the president knew he could be impeached, and if impeachment was outside of his pardon power, then this should keep the president from getting too powerful.
The exclusion of impeachment from the scope of pardons was included in the wording regarding pardons in the Constitution. Over the course of more than two centuries, the power of the pardon has been further limited by federal court cases. While the Supreme Court has generally erred on the side of the Constitution in cases where the pardon power has been challenged, the court has also further defined the power to pardon through a series of cases.
One limitation is that a pardon cannot be issued for a crime that has not yet been committed. Pardons also don't affect civil cases, or state or local cases. Pardons are meant to dismiss sentences stemming from affronts to the United States through the breaking of laws. They're not intended to relieve an individual from his responsibility to make restitution to a victim's family, for example, which would be considered a personal affront. So a presidential pardon of a criminal sentence would not relieve the defendant from paying restitution from a related civil case.
Pardons also don't work unless the person to whom the pardon is granted accepts the pardon. A 1915 Supreme Court case decide that it was to be left up to the grantee of the pardon to decided whether he wants to accept the pardon or not. This seems self-evident, but some federal cases have challenged this once hard-and-fast rule. In one, the Supreme Court decided that matters of life and death fell outside this ideal.
It was decided that if a president decided to commute a prisoner's sentence from the death penalty to life in prison, the prisoner had no choice in the matter. President Calvin Coolidge further deconstructed this rule. When a prisoner he had granted a pardon to refused it, Coolidge told the warden to remove the prisoner and "lock the doors behind him" [Source: USConstitution.net].
When it was established that the pardon is to be used solely to grant reprieve from affronts committed against the United States, a loophole was opened. Pardons have been demonstrated to not legally have an effect on contempt of court charges since, like a civil case, a contempt charge isn't considered an affront to the United States; instead, it's considered an affront to the court.
This caveat also provides Congress with a way to get around the presidential pardon. This resulted in the relatively modern concept of the pardon and its use as a political tool. Check out the next page to learn about how the modern pardon has become a double-edged sword for Congress and the executive branch.
Congress is Burning
The United States Federal Government was purposely separated into three distinct entities: legislative, executive and judicial. Under this arrangement, each branch is given the ability to check and balance the other so that no branch becomes more powerful than the other. This is called "separation of powers," and it's the basis of American government. It applies in all cases, save one -- the presidential pardon.
When the president issues a legitimate pardon it is, legally speaking, irrefutable. Short of generating bad press against a president, there is nothing Congress can do to block or even review a pardon. But how does this sit with Congress?
There have been cases where Congress has considered introducing bills that limit the president's pardon power or allow oversight of pardons. Every last one of these bills failed. Why? Because the president's power to pardon is guaranteed by the Constitution -- it's in the actual original document, not just the Bill of Rights. Plus, it's a long-standing and time-honored traditional power granted to the leader of a country, and a useful one, as we will see. Finally, the judicial branch, viewing the pardon power as a part of the Constitution has served to protect it more often than not [Source: Shanor and Miller].
In the 1974 case, Schick v. Reed (419 U.S. 256), the Supreme Court decreed that "the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself" [Source: Justia].
The pardon gives the president an extra check on the judiciary and congress, a check that neither of the other branches has. This makes the pardon a particularly useful tool when the White House and Congress are at odds with one another. If members of the president's administration are called to testify before Congress, they may have no reason to cooperate or help Congress discover facts in a congressional investigation into the executive branch. This is because even if a staffer refuses to speak with Congress and is arrested for it, the president can immediately grant the staffer a pardon. It's like playing tic-tac-toe, with the executive branch inevitably winning every time.
But Congress does have one relief from the president's power to pardon. Ironically, this relief was first elucidated by a former president.
Ex parte Grossman was a 1924 case that was heard by a Supreme Court lead by Chief Justice William Taft, who had left the White House just 11 years before. In the majority opinion, Taft said that the court's ability to charge its witnesses in contempt existed outside the president's ability to pardon [Source:Cornell University Law School].
Congress, like the courts, has the power to compel witnesses to testify before them. Should any witness refuse, Congress is granted the power to hold these witnesses in contempt. By proxy, the power granted to Congress to hold in contempt anyone who refuses to testify also exists outside the pardoning power. This means, that if the executive branch orders any of its administration not to testify before the legislative branch, Congress may hold that person in contempt, without the possibility of that witness being granted a pardon. In this manner, witnesses are more likely to cooperate with Congress, especially in cases where the executive branch is being investigated.
While the essential rules governing the power remain static, the customs surrounding the power grow, develop, fall off and are replaced by others. In the next section, we'll look at the origins of the presidential pardon.
The Origins of the Pardon
The pardon is based on the royal Prerogative of English Kings, which gave the king the ability to overturn any sentence. Originally, the king's prerogative existed without any limitations attached to it. But during the reign of King Charles II (1660-85), the English Parliament managed to institute the single rule that impeachment was excluded from the pardon power. This rule lives on today.
When the American founders were developing the laws for the United States in the late 18th century, the power to pardon almost didn't make it into the Constitution. In fact, it was barely considered. Two plans, the Virginia Plan and the New Jersey Plan for framing the Constitution, did not include the power to pardon. One of the Virginia Plan's backers, George Mason, believed it was a mistake to grant such power to a single person. Having just revolted against King George III, whom many Americans considered a tyrannical king, many of Mason's fellow framers agreed with him.
But Alexander Hamilton, who believed in a large, powerful, centralized federal government made up of the elite thinkers of the nation, was able to bring the other framers of the U.S. Constitution around to his way of thinking.
In No. 74 of his "Federalist Papers," Alexander Hamilton extolled the value of a pardoning power: "in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall" [Source: Yale Law School].
Hamilton, and eventually the other framers, saw the value of investing in the president the ability to -- at a moment's notice and without the consent of any other branch of government -- grant reprieves to groups during periods of national crisis. It was reasoned that some crises could be allayed or overcome if the belligerents could be given a deal forgiving them for their trespasses.
Almost no sooner than the ink on the Constitution was dry, this ability was needed. When farmers in Pennsylvania revolted in 1794 against federal taxes levied on their corn crops, the Whiskey Rebellion was born. President George Washington used the power to pardon for the first time in United States history to forgive the revolting farmers for their insurrection against the young nation. The action worked and the rebellion was quieted.
The pardon has since been used in this original intent several times. As mentioned earlier, Andrew Johnson used the pardon to redeem Confederate soldiers after the Civil War. President John Adams pardoned soldiers who had deserted during the Revolutionary War. And to help end the Vietnam era, President Jimmy Carter offered a blanket pardon to any American who had dodged the draft during the war.
As the centuries have progressed in America, the presidential pardon has evolved from the ability to forgive treasonous acts, to a much broader interpretation of executive power. Check out the next page to learn how the pardon is being used in the modern era.
The Pardon as a Political Tool
In the era following the 1950s, the pardon power evolved into a broader interpretation, eventually becoming a political tool. If a president feels that Congress has passed overly harsh penalties for breaking a law, he can use the pardon power to thwart the law. The best example of this is President John F. Kennedy's pardoning of those who were convicted of crimes under the Narcotics Act of 1956. Under this law, Congress passed harsh mandatory minimum sentences for drug offenses. As a result, a large number of first-time offenders found themselves in prison for five or more years. Kennedy pardoned these people, in effect overturning much of the law passed by Congress.
Using the blanket pardon as Kennedy did allowed hundreds, if not thousands, to be released from prison. But all of these people were pardoned for the same offense. What about the thousands of different and unique applications for pardons that are filled out each year? To see to it that each is evaluated on its own merits, the president has always needed guidance.
An 1893 law gave the power to review and make recommendations to the president on pardons to the Department of Justice. In 1981, another law created the Office of the Pardon Attorney. This office, a branch of the Department of Justice, is dedicated exclusively to making determinations on petitions for pardons. However, the ultimate decision is left up to the president.
The Pardon Attorney is charged with accepting all pardon applications and investigating them to determine their value. The Pardon Attorney and his office may speak to local or state officials familiar with each case to get a better understanding of the circumstances surrounding the conviction. They also check into the applicant's character and post-conviction history. Did he attempt to make amends for his crime? Has he made an effort to lead an exemplary life since his conviction? Factors like these and others are included in the Pardon Attorney's decision to recommend a pardon be granted to the petitioner.
The president may take the Pardon Attorney's recommendation into consideration. With thousands of petitions for pardons that come in each year, the president must rely on the judgment of the Pardon Attorney and his office to make informed decisions. Ultimately the president is not obligated to agree with the recommendation of the Pardon Attorney, or even use his services at all. This was the case with President Clinton's pardon of Marc Rich, wherein Clinton was said to have circumvented the Office of the Pardon Attorney in making his decision [Source: U.C. Berkeley, Institute of Governmental Studies].
The president who granted the highest percentage of the pardons that came across his desk was Harry Truman, at 42 percent. Truman granted a total of 2,044 acts of clemency during his two terms as president [Source: U.S. Department of Justice].
The two presidents who had the least number of pardons are James Garfield and William Henry Harrison, both with no pardons to their names. Garfield was assassinated after holding office less than a year and Harrison died of pneumonia just under a month after he took office.
What about some of our recent presidents? Jimmy Carter issued 566. Ronald Reagan issued 406, and Bill Clinton issued 456 pardons. At the beginning of his second term, George W. Bush had issued 31 pardons [Source: History News Network]. As of June 2007, the number increased to 113 [Source: Bloomberg].This is similar to his father, George H. W. Bush, who granted only 77 pardons in his four-year term as president.
For more information on pardons and related topics, check out the links on the next page.
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