Not politicians, but an informed citizenry is at the heart of a well-functioning democracy. The best time to learn anything is when you are interested. Lately, presidential pardons have been in the news. Seemed like a good time to learn what it is and how presidents have used this power.
Article II, Section 2, Clause 1 in the Constitution states: The President…shall have Power to grant Reprieves and pardons or Offenses against the United States, except in Cases of Impeachment.
King George III ruled the British kingdom during the American Revolutionary War. The framers of the Constitution knew British laws and were accustomed to the king’s power to pardon. They also knew King George saw their declaration as treason—there would be no pardon for them if they failed. Either they’d band together and get the job done, ratify the Constitution, or they’d hang separately. It was a powerful incentive to find the middle ground.
Whether British laws were their primary influence, or as some historians make a case for, the Iroquois Confederacy, our founding fathers struggled mightily agreeing on where the pardon power should rest. Should it be with the President or Congress? In the end, our Constitution gave the President the power to pardon, a form of a check on the judicial branch, an opportunity to right a wrong and show mercy.
For more than 125 years, presidents relied on the Justice Department, the Office of the Pardon Attorney in particular, for guidance in granting executive clemency, pardons, commutation of sentences, remissions of fines or restitutions, or reprieves. My interest was in full pardons, forgiving all misdeeds of any kind—an absolution. A commutation mitigates the punishment, but you remain branded as a criminal. You may recall when Obama reduced Manning’s sentence. The right-wing media was outraged about this “pardon.” It wasn’t a pardon; it was a commutation that reduced her sentence from 35 to 7 years. A full pardon is a bigger deal.
Until recently, all requests were sent to the Pardon Attorney for review and investigation, resulting in recommendations for the President to help him make the final decisions.
In 1795, President Washington granted the first pardons to two guys convicted of treason for their roles in the Whiskey Rebellion. From then on, presidents have pardoned people to correct injustice or as favors to friends, politicians, and pirates. Well, maybe not pirates.
Franklin D. Roosevelt pardoned the most, 2,819, partly because he was elected to four terms. Of the more recent presidents: Jimmy Carter—534 pardons, Bill Clinton—396, George W. Bush—189, and Barack Obama—212.
On January 21, 1977, the day after taking office, Jimmy Carter granted an unconditional pardon to draft dodgers (Vietnam era 1955-1975). Consequently, Republicans vilified him, and Vietnam vets cried foul.
Future Presidents of the Vietnam generation— Bill Clinton (b.1946), George W. Bush (b.1946), and Donald Trump (b.1946)— never saw combat in Vietnam. Bill Clinton avoided it with an education deferment. George W. Bush served but was never sent to Vietnam. Donald Trump received four education draft deferments and one medical for bone spurs in his heels. President-elect Biden received four education deferments and one medical for asthma. President Carter served in the military from 1946 to 1961, receiving several service medals.
With only hours left in his term, Bill Clinton issued 140 presidential pardons, mostly to people convinced of federal criminal offenses. The American people’s criticism was not for the mercy he showed, but for a handful of pardons he made for friends like Marc Rich, who fled the country after his indictment on tax evasion and illegal dealings with Iran. Marc’s former wife had made a large donation to the Democratic Party and the Clinton library. Bill Clinton also pardoned his half-brother convicted on drug charges and Susan McDougal, a business partner, jailed in the Whitewater scandal.
Among 189 pardons, George W. Bush granted six Reagan officials pardons for their Iran-contra affair roles. His partial pardon of Lewis Libby, Jr., a Chief of Staff to Vice President Dick Cheney, set off a storm of criticism and a hearing in the House Judiciary Committee regarding the use of presidential clemency for executive branch officials. (A partial pardon exonerates the offender from some portion of the punishment or legal consequences of a crime.) Mr. Libby was convicted of perjury and obstruction of justice in connection with the disclosure of the identity of a C.I.A. officer, Valerie Plame. The day before Bush left office, he pardoned two border patrol agents for shooting a Mexican drug smuggler and trying to cover it up.
President Obama’s 212 pardons, except for two, were not high profile cases. They were drug offenders found guilty under strict laws later eased. His two high-profile cases were retired U.S. Marine Corps four-star general James Cartwright and professional baseball player Willie McCovey. Cartwright pled guilty to lying to the F.B.I. in a leak investigation. McCovey pled guilty to federal tax fraud for failing to report around $10,000 in income from 1988-90. He was sentenced to two years probation and a fine of $5,000.
“Modern presidents have sullied clemency,” Mark Osler, a law professor and clemency scholar, told NPR. His statement was about the “occasional self-serving grants.” However, Professor Osler continues, “no president has ever used clemency primarily to reward friends and political allies” — until Trump.”(Clinton ?)
In December 2020, White House reporter Toluse Olorunnipa on Civic 101 podcast explains what’s going on with this process today: “So, the President’s son-in-law, Jared Kushner, has taken the reins of this new pardon initiative.” Mr. Kushner and the President agreed to remove “the pardon process from the Justice Department directly into the White House. Never before have a presidents’ family members played such a prominent role “when it comes to deciding the fate of potentially hundreds or thousands of prisoners.”
Common misconceptions about pardons:
- You must be charged and convicted before you can be pardoned. That is untrue. President Jimmy Carter pardoned thousands of Vietnam draft evaders, some of who had not been charged or convicted. President Ford pardoned Nixon, who had not been charged with anything. The question of Trump pardoning himself seems to be unchartered waters.
- Pardons are only for guilty people; accepting one is an admission of guilt. President Ford carried a quote in his wallet from a 1915 Supreme Court case, Burdock v. United States, to justify Nixon’s pardon. But according to Brian C. Kalt, a law professor, the justices’ language was to point out that accepting a pardon made people look guilty and they might not want to receive it. Bottom line, pardons don’t declare guilt, but to many they infer guilt.
As of December 26, 2020, Trump’s connections to those he has given executive clemencies are as follows: Political: 68, Personal: 40, Celebrity: 20, Television: 20.