Pardon Me?

Most of our blog posts update readers of Fault Lines in the Constitution on issues with the US Constitution. For instance, “Chapter 10: Who Gets a Shot at the Oval Office?” explains the many and confusing requirements for running for the presidency, the head of the country. And, our post “Run, If You Can!” describes teenagers who are running for the governorship, the head of their states, Kansas and Vermont.

This post is different. Instead of explaining what’s new, it responds to the question What did we miss? In fact, this might turn out to be one of several blogs on problems that we did not address in the book. (Eighteen fault lines seemed like enough when it was published in 2017!) First up: presidential pardons. Here is a mini-chapter on the topic.

Robber!

On June 17, 1972, five men were caught breaking into the headquarters of the Democratic National Committee, which was housed in the Watergate building complex in Washington, DC. They were arrested, and it soon came out that they had been attempting to steal documents and attach bugging devices to the Democrats’ telephones. The situation seemed suspicious, especially since one of the burglars was working for CREEP, the Committee for the Re-election of the President—Republican President Richard M. Nixon—in the upcoming November election. But the full details of the robbery did not come out until after the election, which Nixon handily won.

After the election, many more details dramatically rolled out, including evidence that Nixon had participated in a cover-up of the Watergate burglary. Journalists discovered that the burglars had been paid hundreds of thousands of dollars to keep them quiet about the involvement of CREEP and other high-level officials. A Senate Committee held televised hearings, during which a witness let it be known that the President taped all conversations in the Oval Office. The special prosecutor, Archibald Cox, who was appointed to investigate whether crimes had been committed, demanded the tapes. Nixon then ordered that Cox be fired.

This rash act triggered what was called the Saturday Night Massacre, when two Justice Department officials resigned rather than obey Nixon’s order. The Supreme Court ruled that Nixon had to turn over the tapes, which revealed that he knew about the attempts to cover up the robbery. Realizing that the House of Representatives would vote to impeach him and that the Senate would convict him, Nixon chose to resign in August 1974—the first president to do so. Vice President Gerald Ford took his place and, six weeks later, pardoned Nixon for any crimes he committed. The former president had “suffered enough,” Ford said, and the country needed to heal from the stresses of the scandal.

Meanwhile, Back in 1787

When the Framers got together in mid-May 1787, they debated whether or not to establish a president as head of the government. Once they made that decision, they had to agree on what powers the president should have. Charles Pinckney of South Carolina proposed that the chief executive have the same pardon power as the English king—the ability to pardon in all cases except impeachments.

George Mason of Virginia objected. The president might hire someone to carry out a crime and then pardon the perpetrator to save his own skin, he pointed out. This would be especially damaging if the head of the government committed treason. James Wilson of Pennsylvania responded that, if that happened, Congress would impeach and prosecute the president. Others argued that the Senate should have the right to approve a presidential pardon. The ultimate decision was to grant the president extremely broad powers to pardon, without involvement by the Senate.

“The President…shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” Article II, Section 2

Alexander Hamilton, writing later in the Federalist, strongly defended the pardoning power. One reason was to provide mercy to people who deserved it, such as those who had been unjustly convicted or had repented and should be returned to society as full citizens. Another reason was to pardon even traitors, if doing so would heal political wounds. George Washington, for instance, pardoned farmers in western Pennsylvania who had taken up arms against US tax collectors in the Whiskey Rebellion; Washington wanted to restore civic peace.

So What’s the Big Problem?

The president’s power to grant pardons is very broad. With the exception of impeachment, the chief can erase a criminal conviction as if it had never happened. Or, he can let it stand but reduce the length of a prison sentence or the cost of a fine. Or, as with Ford and Nixon, he can pardon someone who has not even been indicted, tried, or convicted.

The numbers of presidential pardons range from 0, for the two presidents who served very brief terms, to 3687 for Franklin D. Roosevelt, who served for twelve years. The reasons for pardons also vary widely. Thomas Jefferson pardoned prisoners convicted of the Sedition Act because he thought it was unconstitutional. Andrew Johnson declared amnesty, which is similar to a pardon, for most Confederates if they swore allegiance to the United States and abided by anti-slavery laws. Jimmy Carter pardoned over 200,000 young men who evaded the draft during the Vietnam War. Bill Clinton cleared his brother of drug charges.

In addition, it turns out that George Mason had a good point. President George H. W. Bush pardoned people who had participated in a scandal called Iran-Contra. The arrangement involved selling weapons to Iran in order to send money to insurgents in Nicaragua, which was illegal, and to free American hostages. Bush had been vice president when the deals were made and carried out. Many people viewed his Christmas Eve pardons in December 1992, after he been defeated by Bill Clinton the month before, as efforts to protect himself by assuring the silence of those he pardoned.

During Nixon’s Watergate scandals, people wondered whether he would try to pardon himself. The Department of Justice issued a legal opinion saying that he couldn’t because “no person can be the judge of his own case.” But that was only one opinion, and some lawyers interpret the wide-open language of the Pardon Clause to allow the possibility of self-pardon. So far, at least, the question hasn’t been tested.

However, these days, people wonder about the use of the pardoning power by President Donald J. Trump if investigations reveal that he, his family, and other associates were involved in possible criminal actions. These might include conspiring with Russia to tilt the 2016 election or obstructing justice by firing the former head of the F.B.I., James Comey. He could certainly pardon anyone he wishes, including family members. What would happen if he tried to pardon himself as well, before he’s even charged with any crimes, let alone found guilty? Even if he succeeded in protecting himself from punishment, might his self-pardon serve as the basis for impeachment as abuse of the pardoning power?

If you want to read more about these issues, take a look at Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies by Professor Brian Kalt.

There Are Other Ways

States

Governors of most states can grant pardons, although repeated scandals over governors selling pardons have led many states to limit the pardoning power of that office. Some states, for example, give the authority to a Board of Pardons and Parole, which spreads the decision-making power to a number of people.

Other Countries

The situation varies around the world. The presidents of France and Germany can grant pardons, as in the US. However, the Parole Board of Canada has the responsibility there.

The Story Continues

Former President Nixon returned to his home in California. In his speech to Congress after becoming president, Ford declared, “Our long national nightmare is over.” However, he was criticized for pardoning Nixon, and that undoubtedly contributed to his narrow loss when he ran for election in 1976. After Ford died in 2006, many editorialists suggested that he had done the right thing; otherwise, the country might have been torn apart if a former president were tried and perhaps sent to jail for committing a criminal offense.

How far do you think the president’s ability to grant pardons should go? Even if one draws the line at self-pardons, should a president retain a basically free hand with regard to everyone else? Or should Congress be able to say that certain pardons would constitute an abuse of the power subject that would justify impeachment?