One of Bill Clinton's last (non-sexual) acts in office consisted of granting a pardon to his half-brother Roger. Roger pled guilty in 1985 to conspiring to distribute cocaine.
Roger wasn't a typical coke dealer. Roger was a good guy. Yeah, Roger begged, rolled over, played dead, and testified against other defendants in drug-related cases. Now, thanks to his brother, Roger has the right to vote and play gigs at the White House. And if he wants, to run for president.
According to an oft-quoted 1867 Supreme Court statement:
"...when the [Presidential] pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense."
Ah, Presidential magic. Poof goes the crime, disappearing faster than a cigar into the nether region of a White House intern. Zap the crime away without having to deal with that pesky law that makes something a crime to begin with. Brilliant.
Give me the power to pardon. Damn, I'd be the hit of the party. I don't even need to bring the booze or the drugs. I can just wave my magic wand and pardon anyone who happens to get caught using them. Oops. I forgot. I'd only need to pardon the pot heads. That's right. The rights violations involved in the bong hits always manage to escape my memory.
Ok, so the criminal behavior inherent in the inhalation of smoke might be a tad blurry. So let's look at a few clear-cut examples that were wished away by our last president:
Marc Rich: Rich has been the most discussed pardon recipient in the media. Rich was indicted on more than 50 counts of wire fraud, plus racketeering and trading with Iran in violation of a trade embargo, not to mention evading more than $48 million in income taxes. "This was not a political thing," Clinton said of this pardon. Just as it was not a "political thing" when Marc Rich's wife, Denise, donated hundreds of thousands of dollars to the Democratic Party, including Clinton's own campaign and Hillary's Senatorial campaign. And of course, it wasn't a "political thing" when Jack Quinn, Rich's lawyer, was White House counsel for the Clinton administration. No, nothing political here at all.
Susan McDougal: Hell knows the pardoning of McDougal wasn't a "political thing". All she was convicted of was misusing proceeds from a federal loan. And refusing to testify against Clinton in the Whitewater case.
Congressman Mel Reynolds: Reynolds was convicted in 1997 of wire fraud, lying to the Federal Election Commission, and 15 charges of bank fraud. Not that anyone wants to make a big stink about it, but Reynolds was also convicted two years earlier of aggravated sexual abuse, criminal sexual assault, and solicitation of child pornography. Presumably, Clinton would claim that there was absolutely nothing "political" involved in this particular pardon. Just as there was nothing political to the numerous campaign appearances the two made together.
Yeah, right.
But if we're going to question the Clinton pardons, then the obvious question we have to ask is: did Clinton do anything out of his power? Or were these pardons fully consistent with Constitutionally-prescribed Presidential powers?
Well, we don't need to look far to get a defense of Clinton. Regarding the Rich pardon, our current president has said: "I am troubled by the decision the president made; I would not have made that decision. But nevertheless he was the president, he had the right to do so, to make that decision, and he did. And I'm going to protect that privilege not only for me but for future presidents as well."
Sounds like G.W.'s opinion amounts to: "I'll look the other way, so the next president will look the other way." So maybe we'll have to look a little further than G.W.
The Constitution seems like a good place to start: "[The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
Surprisingly or not, that's all the Constitution says. But the last thing we ought to do is to blame the Founding Fathers for the behavior of insects like Bill Clinton. If the Founding Fathers didn't specify that the pardon couldn't be enacted when, for example, someone keeps their mouth shut in court in order to keep you out of hot water, we shouldn't fault them. After all, they may have had legitimate uses of the pardon in mind.
So what might those legitimate uses be?
For starters, let's look at how one of the actual Founding Fathers used the pardon. When Thomas Jefferson was president, he pardoned all those convicted under the Sedition Act. Under the Sedition Act of 1798, you could be fined or imprisoned if you chose to "write, print, utter or publish...any false, scandalous and malicious writing or writings against the government of the United States...with intent to defame the said government...or to bring them...into contempt or disrepute; or to excite against them...the hatred of the good people of the United States..."
Ok, fine. A blatant violation of the First Amendment. Republican newspapers had been shut down under this Act. Nowadays, who knows. Publications that advocate, say, the reversal of the marijuana laws might suffer the same consequences.
But let's dig deeper. In the Commentaries on the Laws of England, which served as a philosophical basis for the Founding Fathers, Sir William Blackstone wrote:
"[The pardon] is indeed one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, wherever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law, in such criminal cases as merit an exemption from punishment."
Hmm. There's one little word here which doesn't seem to fit in a commentary on law and punishment. Can you guess it?
But before we give it away, let's jump forward in time to another statement about the pardon. The little word coincidentally shows up again: "I do believe, with all my heart and mind and spirit, that I, not as President but as a humble servant of God, will receive justice without mercy if I fail to show mercy."
This was from the statement made by President Ford, upon granting the pardon to Nixon for his role in Watergate.
Now let's jump forward again, this time to the present. One journalist from ABC News commented on the Clinton pardons: "Clinton has portrayed his pardons as acts of mercy for people unfairly entangled in the justice system."
Would you support "unfair entanglement in the justice system"? I sure wouldn't. It looks like a job for - you guessed it - that little word that keeps resurfacing: mercy.
And this, my friends, is why we have the phrase, "the road to hell is paved with good intentions". The fact is, we don't need mercy in our justice system. What we need is a justice system that's just. If a criminal has broken a legitimate law and deserves to be punished (as in the case of Clinton's buddies Rich, Reynolds, and McDougal), then a pardon for the crime is unjust. If a law is not legitimate, and punishment is not deserved, then a pardon is just a slap in the face of all those who aren't lucky enough to have a friend in the White House.
What should be done, in the case when a criminal doesn't deserve punishment, is to eliminate the law that makes the person a criminal. That's why Jefferson was on the right track in his handling of the Sedition Act. (His problem was that instead of attempting to eliminate the law at the federal level, he allowed state governments to resolve the issue themselves. What I would have liked to have asked Jefferson is: If a law is unconstitutional, why should states get the privilege of even considering such a law?)
There may be other special cases when the pardon is necessary. I don't have a problem with, for example, Abraham Lincoln pardoning Southerners for their involvement in the Civil War. (He did so if they pledged their allegiance to the Union.) This makes a hell of a lot more sense than throwing half the country into prison. But this is a special case (after a civil war!), and one in which other branches of government could certainly be involved. (They weren't.) During the normal functioning of government, however, I can see the pardon being legitimate only under one circumstance: during the interim period when a law has been, or is being, revised.
Let's imagine for a moment that Clinton had backed up the pardoning of his brother with eight years of hard work to eliminate the drug laws. And let's imagine if Clinton had succeeded in eliminating those laws. And what the hell, while we're fantasizing, let's imagine if Clinton had pardoned everyone who had broken those now-defunct laws. If that had happened, we might not be hearing so much about the absurdity of the Presidential pardon, we might actually be hearing some reverence for it.
But instead Bill wanted to give his brother the right to vote by completely bypassing the legal system. How dare he absolve a relative for a bogus law he took absolutely no action to overturn during his term as President?
In all honesty, we should thank Clinton for one thing. Clinton's pardons have allowed us to see that one small part of our Constitution deserves some clarification. Now that insects like Clinton do exist, what we need are some objectively defined limits to the power of Presidential pardon. Until we have such limits, the continued Presidential pardoning for the sake of "mercy" will, by definition, allow future Presidents to dispense with justice. Because, by definition, mercy is the opposite of justice.
