Executive Clemency or Bureaucratic Discretion? Two Models of the Pardons Process

This article examines the use of the president's pardon power from 1953 to 2000. Two different models are used to describe the pardons process: a presidential model and an agency model The presidential model takes a top-down approach to the pardons process by viewing the pardon power as a resource that the president can use to advance specific policy goals. In contrast, the agency model views the pardons process as a bottom-up process, with the preferences of officials within the Department of Justice as the key determinant of the number of pardons issued. This article empirically tests both of these models and finds that the president's control over the pardons process is limited by officials within the Justice Department and the actions of past presidents. This is illustrated by an in-depth case study of President Bill Clinton's controversial use of the pardon power. ********** The pardon power is one of the few powers that the president exercises unilaterally. Article 2, Section 2 of the Constitution states that the president "shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." The president's use of the pardon power is not shared with either of the other branches of the government nor can the pardon power be restricted or limited in any way by Congress or the courts, except by constitutional amendment. Gerald Ford's pardon of Richard Nixon, George H. W. Bush's pardons of those involved in the Iran-Contra scandal, and Bill Clinton's use of the pardon power during his final days in office--and the controversy that these pardons generated--seem to underscore the arbitrary, capricious, and uncontrollable nature of the pardon power. In theory, the pardon power represents a clear exercise of presidential authority. This article considers to what degree this view of the pardon power is true in practice. The first section broadly traces the development of the pardon power from the debates in the Constitutional Convention to its more recent exercise by President Clinton. The next section develops and tests two models of the clemency process: the presidential model and the agency model. The presidential model views the president as the main actor in the pardons process. Here, grants of pardon are modeled as reflections of the president's personal preferences and the political constraints he faces. In contrast, the agency model takes officials within the Justice Department as the primary decision makers in the pardons process. This analysis finds that, in practice, instead of being the exclusive wielder of the pardon power, the president is the last hurdle that a pardon application must clear in a lengthy and convoluted process governed largely by executive branch officials. The following section attempts to explain why this has become the case and identifies several factors that have diminished the president's ability to exercise the pardon power. Finally, I conclude by examining Clinton's controversial use of the pardon power during his final week in office and his centralization of the pardons process. The Use and Suspected Abuse of the Pardon Power Debates within the Constitutional Convention Although the pardon power has its foundations in the prerogative of kingship, the delegates to the Constitutional Convention were reluctant to place any restrictions on this royal power. Although the Constitution forbids the granting of pardons in cases of impeachment, several delegates wanted to extend this exemption to cases of treason as well. Edmund Randolph, a delegate from Virginia, was the leading critic of an unqualified pardon power, favoring senatorial consent in cases of impeachment and treason. He stated that "the prerogative of pardon in these cases was too great a trust" to give to the president alone. One could imagine a scenario, Randolph argued, where the president himself was guilty of treason and the traitors merely "his own instruments" (Farrand 1966, 2:626). …