WASHINGTON — The president’s power to pardon is one provision in the Constitution that some members of Congress find unsettling, especially at the end of a president’s term.
Not surprising since Congress has no power to stop or repeal a presidential pardon.
But since pardon controversies usually erupt only every four or eight years, those who want to curb the pardon power by amending the Constitution never have had enough momentum to do so.
Article II, section 2 of the Constitution says the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
If President George W. Bush were to issue pardons of former Attorney General Alberto Gonzales, Vice President Dick Cheney’s former chief of staff Lewis “Scooter” Libby, or others, would the Democratic-controlled Congress pass a constitutional amendment to limit presidents' pardon power?
James Pfiffner, a presidential scholar at the School of Public Policy at George Mason University said, “I see no likelihood that the Constitution would be amended to limit the pardon power. It is just too difficult to amend the Constitution.”
The debates over pardons at the end of presidents’ terms tend to be quickly forgotten.
President Bill Clinton’s final day pardons of fugitive commodities dealer Marc Rich and others were front-page news for several weeks after Clinton left office, but Congress and the news media soon shifted their sights to other topics.
Reputation a deterrent to bad pardons?
With no way for Congress to stop a president’s pardons, pardon critics fall back on arguments that a president ought to worry about his reputation before handing out dubious pardons.
The New York Times editorial page, never a Bush supporter, said last week that “if he wants to try to reclaim his reputation,” he should not issue pardons to administration alumni such as Libby, whose sentence Bush has already commuted.
But as Bill Clinton proved, “legacy” and historical reputation are changeable concepts.
In 1974, as a congressional candidate, Clinton railed against President Gerald Ford’s pardon of his predecessor Richard Nixon.
White House tapes made clear Nixon had worked to block a criminal investigation of the 1972 break-in at Democratic National Committee headquarters at the Watergate in Washington.
Nixon was forced to resign. His successor, Ford, then pardoned him for any Watergate-related crimes he might have committed.
An outraged Congress briefly considered action: Sen. Walter Mondale, D-Minn., proposed a constitutional amendment allowing a pardon to be rescinded by a two-thirds votes of both House and Senate.
“This pardon has again opened the wounds of Watergate,” Clinton told voters in 1974. “It has undermined respect for law and order… It has tormented the families of those already in prison for the administration’s political crimes.”
Clinton praises Ford for Nixon pardon
Twenty-five years later, as president, Clinton awarded the Presidential Medal of Freedom to Ford and praised him for giving Nixon the pardon.
The current version of the end-of-presidency pardon speculation heated up this week as Weekly Standard editor William Kristol wrote that the president should consider pardoning “everyone who served in good faith in the war on terror, but whose deeds may now be susceptible to demagogic or politically inspired prosecution by some seeking to score political points.”
He said, “The CIA agents who waterboarded Khalid Sheikh Mohammed, and the NSA officials who listened in on phone calls from Pakistan, should not have to worry about legal bills or public defamation.”
But Sen. Russ Feingold, D-Wisc., a harsh Bush critic, said last month, “If President Bush were to pardon key individuals involved in the misdeeds of his administration, from warrantless wiretapping to torture to the firing of U.S. attorneys for political reasons, the courts would be unable to address criminality, or pass judgment on the legality of some of the president's worst abuses.”
Rep. Jerrold Nadler, D-N.Y., another Bush foe, has offered a non-binding resolution saying it would be “a dangerous abuse of the pardon power” for Bush to pardon officials of his administration.
Nadler wants attorney general-designate Eric Holder, once he takes office next year, to appoint an independent counsel to investigate “illegal acts by senior officials of the administration of President George W. Bush.”
But Nadler’s suggestion is an illustration of the check-mating power of the pardon. Even if Holder did appoint an independent counsel, that prosecutor would have no one to prosecute if they’d already been pardoned.
(Holder, as deputy attorney general under Clinton, played a role in the pardons of Rich and others, a topic he's likely to be questioned about during his confirmation hearings.)
In the rhetorical clash of “please pardon” versus “don’t you dare pardon,” the essential fact is this: Other than holding hearings after the fact, as it did with Clinton’s pardons eight years ago, Congress can do nothing about pardons it dislikes.
What the Framers thought
The debates at the 1787 constitutional convention as well as Supreme Court rulings have made it clear that the president’s power to pardon is sweeping, covering those who have been convicted of violations of federal law, those who have been indicted but not yet stood trial, and even those who have not yet been indicted.
The constitutional convention debated and overwhelmingly rejected a proposal requiring that the Senate concur in any pardons.
In light of how much the Framers of the Constitution feared monarchical power, why did they give the president such unlimited power?
One of the Framers, Alexander Hamilton, argued for assigning the pardon power to the president alone because in times of rebellion against the government “there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility” of the nation.
Convening Congress to debate pardons would take too long, he argued.
Ford, Bush, and Clinton weren’t worried about rebellions when they issued their famous pardons, although Ford did say he pardoned Nixon in order to avert a prosecution of the ex-president that would have divided the nation.
Recent presidents have used the pardon power to do justice as they saw it.
Pardons in Iran-contra affair
In 1992, Bush’s father President George H.W. Bush granted Christmas Eve pardons to former Defense Secretary Caspar Weinberger and five other former officials for their roles in the Iran-Contra affair.
In that mid-1980s episode, now mostly forgotten, Reagan administration officials arranged for weapons to be shipped to Iran in exchange for the release of U.S. hostages held by the Hezbollah militants in Lebanon.
But Bush said of Weinberger and the others accused in the Iran-contra episode, “their motivation — whether their actions were right or wrong — was patriotism.”
And he said those he pardoned “have already paid a price — in depleted savings, lost careers, anguished families — grossly disproportionate to any misdeeds or errors of judgment they may have committed.”
As contentious as the Iran-contra affair seemed in 1992, Bush was taking a step to make it history, to relegate it to place where people would no longer be debating it. He succeeded in doing that.
Whether his son could do something similar before his term ends on Jan. 20 is one of the intriguing final questions about the Bush presidency.