The Presidential Pardon

It is a paradox to be elected President of the United States. You inherit the title, Commander-in-Chief and you are told by the great and good you are the most powerful man (or woman) in the free world but you know deep in your gut that this is guff. You might make the final decision on use of armed forces but your Secretary of State and Armed Forces Chiefs are on your tail. As for legislative power, you have none save a veto which can be overridden. You can sign Executive Orders but these can be overruled by Congress and the Supreme Court. The right to enact laws belongs to Congress which also has extensive oversight powers on the executive, i.e. the President. Furthermore, the Supreme Court can undo all kinds of programs you want to see through. Just look at what the Supremes did in 1935 to Roosevelt’s first New Deal legislation. Two years later, when FDR retaliated with the Court Packing Plan seeking to diminish the Court’s powers, the overwhelmingly Democratic Congress rebuffed FDR.

However, there is a Presidential power that is not subject to checks and balances. Article II, Section 2, of the Constitution states that the President shall have the power to grant reprieves and pardons for offences, except in the case of impeachment. All Presidents bar two, Harrison and Garfield who both died early in their terms, have issued pardons. Numbers have varied considerably. George Washington issued a mere 16 pardons. FDR granted the most, 3,687, but he had twelve years in office. Some who benefited were former bootleggers and FDR liked his tipple! LBJ granted 1,187 pardons, Nixon 926, Reagan a measly 406 and Clinton only 456. “W” was a hard man. During his eight years, only 176 miscreants received a pardon.

There have been scandalous and, arguably, undeserved pardons. One of the 20th century’s most notorious union leaders, Teamster’s leader Jimmy Hoffa, was the recipient of a particularly controversial pardon. In 1964, after a series of government investigations into the practices of the Teamsters, Hoffa was sentenced to eight years for jury tampering and five years for mail fraud. Hoffa entered jail in 1967, but only served a few years before President Nixon commuted his sentence. The offer of clemency came with the condition that Hoffa would no longer participate in Teamsters activities, but critics argued it also involved a backroom deal that the union would support Nixon’s re-election campaign, Hoffa’s pardon was overshadowed by his 1974 disappearance from the parking lot of a Detroit restaurant. Hoffa’s body was never found.

Nixon himself was pardoned after resigning his office in August 1974, amid accusations of malfeasance related to the Watergate scandal. The punishment for impeachment is removal from office but there was a possibility that Nixon might have been prosecuted for Watergate-related offences. The Watergate Grand Jury had referred to him as an “un-named, unindicted conspirator.” Nixon was granted a full pardon by President Gerald Ford only weeks after stepping down. Ford’s offer of clemency came before Nixon was charged with any misdeeds and covered all federal crimes the former president “had committed or may have committed or taken part in” during his terms in office.

In 1974, the granddaughter of newspaper magnate William Randolph Hearst was kidnapped and held for ransom by a radical group calling itself the Symbionese Liberation Army. While the 19-year-old heiress began her ordeal as a hostage, she soon shocked the world by announcing that she had voluntarily joined the ranks of her captors. She went on to wield a rifle during an SLA bank heist only days later. The unlikely revolutionary eventually spent more than a year on the run before being captured in September, 1975 in an FBI dragnet. Hearst’s attorneys argued she had been brainwashed and abused during her captivity, but this was not enough to avoid a seven-year prison sentence for bank robbery. President Jimmy Carter judged the punishment too harsh, and commuted Hearst’s prison sentence after she had served only 22 months behind bars. At Carter’s urging, in 2001 President Bill Clinton issued her a full pardon.

On January 20, 2001, hours before leaving office, Bill Clinton granted commodity trader Marc Rich a highly controversial presidential pardon. Rich had been imprisoned for numerous fraud offences. Several of Clinton's strongest supporters distanced themselves from the decision. Former President, a fellow Democrat, said, "I don't think there is any doubt that some of the factors in his pardon were attributable to large gifts. In my opinion, that was disgraceful." Clinton himself later expressed regret for issuing the pardon, saying that "it wasn't worth the damage to my reputation." Clinton's critics alleged that Rich's pardon had been bought, as Denise Rich had given more than $1 million to the Democratic Party, including more than $100,000 to the Senate campaign of Mrs. Clinton and $450,000 to the Clinton Library foundation.

Clinton sought to justify his decision by noting that cases similar to Rich’s had been dealt with in the civil courts. Clinton also cited clemency pleas he had received from Israeli government politicians including Shimon Peres and Ehud Olmert. Rich had made substantial donations to Israeli charitable foundations over the years.

America has a vast prison population, swelled by mandatory minimum laws and “three strikes and you’re out” life sentences. Last week, President Obama commuted the sentences of 111 federal prisoners as part of an initiative aimed at reducing prison stays of individuals incarcerated under the nation’s harsh drug laws. The commutations brought Obama’s total for the month of August to 325, the most commutations granted in a single month in United States history. The total number of prisoners who met the administration’s criteria for clemency is believed to be around 1,500. Of those, President Obama has granted clemency to 673 individuals.

White House Counsel, Neil Eggleston, wrote: “They are individuals who received unduly harsh sentences under outdated laws for committing largely non-violent drug crimes. For each of these applicants, the President considers the individual merits of each application to determine that an applicant is ready to make use of his or her second chance.” In truth, the President has a Pardons Attorney who makes recommendation on which the President might act.

In an election year when one Presidential candidate is holding himself out as “the law and order candidate,” it is to be hoped that Presidential pardons will add some common sense to the debate, not to mention the process of fixed-term sentences where judicial objectivity is removed from the equation.