As the tenure of the 43rd president draws to a close, George W. Bush has issued another set of 14 pardons and two sentence commutations. (You may view a complete list here.) The specific details seem to provide little satisfaction on either side of the political divide, being mostly little-known criminals convicted of either drug trafficking or bank fraud offenses. Critics of the Bush administration on the Left seem to be disappointed that none of the high-profile, GOP-friendly names which were anticipated made the list, such as Michael Milkin, Duke Cunningham, and Scooter Libby. These would likely have given them a cudgel to wield against conservatives when they regularly bring up the Clinton pardons of nefarious individuals such as Marc Rich. Conservatives, such as Town Hall’s Amanda Carpenter, MacRanger, and our good friend Fausta Wertz, had negative reactions which included outrage at the pardoning of drug dealers and the overwhelming consensus that Bush should have pardoned former Border Patrol Agents Ignacio Ramos and Jose Compean.
I shall leave judgment of the details of these pardons up to the readers. What I’ve always found most interesting during the pardon season is the mechanism itself, if only for its highly controversial nature. The basis for the President’s ability to do this is found in Article II, Section 2 of the U.S. Constitution and it reads as follows:
he [The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
There is only one set of cases where the President is clearly denied the power of the pardon, that being government officials (including himself) who face impeachment. Beyond that, however, the waters get a bit more murky. We’re unlikely to see any major changes in this situation absent a new Constitutional Convention, as the judicial community seems to view unfettered Presidential pardon power as stare decisis, but this interpretation has been challenged, long and hard, as flying in face of common sense.
First, what sort of crimes does the constitution intend as applicable to the pardon option? The Founding Fathers were stingy with the words “crime” and “crimes” in their writing. They appear only five times in the original document and four more in all of the amendments combined. We’re all familiar with the more pedestrian “crimes against persons and property” which make up the vast majority of incidents in civil law. We’re also well versed in the highly controversial “high crimes and misdemeanors” when it comes to impeachment proceedings. But what would constitute “offenses against the United States?” This phrase is unique in the entire body of the Constitution and the amendments. Should that not be a clue as to the special and specific nature of crimes to be covered by this power? Yes, the case can be and has been made that any action which violates any statue in our body of laws might be contrived as an offense against the principles of the country, but that’s fairly weak tea.
When attempting to discern the actual intent of the Founders, we often turn to their other writings of the period where possible. This option is open to us in considering pardons, as Alexander Hamilton wrote on the subject quite eloquently in Federalist 74.
But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity.
It’s true that Hamilton also spoke of the need for the President to have freedom in doing this when he wrote, “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” But it is worth noting that the author then goes on at great length to caution against any casual use of the pardon, mostly to avoid, “the dread of being accused of weakness or connivance.”
It seems rather clear, at least to me, that the Founders really did intend the pardon to be an infrequently-used tool which would allow the President to ensure the stability of the Union, in dire cases (as Hamilton described it) of a need for “access to exceptions in favor of unfortunate guilt.” Do crimes such as drug trafficking or malfeasance in financial institutions truly pose a threat to the stability of the union or qualify as “unfortunate guilt?” It’s hard to imagine them doing so. But, again, this is currently all seen as settled law and will likely only be an amusing mental exercise for us at present.