The Law: Presidential Misuse of the Pardon Power

The purpose of this article is to explore why the presidential pardon power has been invoked by our last three presidents not merely for the traditional reasons of showing mercy or ensuring justice, but also in circumstances where the president may have enjoyed a personal benefit from exercising executive clemency. Presidents George H.W. Bush, Bill Clinton, and George W. Bush each used clemency in inappropriate ways: either to help their own executive branch officials and possibly themselves to avoid judicial prosecution (Bush 1 and 2), or to excuse financial contributors and aides that, as the president himself, had been subjects of aggressive independent counsel investigations (Clinton). These controversial clemency actions of the last three presidents are an unfortunate legacy of the independent counsel statute, which lapsed in 1999. As will be shown, nearly every pre-Watergate president who had endured a special counsel investigation avoided using the clemency power to excuse executive branch officials from their crimes, especially in circumstances where the president's own involvement was unclear. The restraint showed by these past presidents is consistent with the framers' intentions that the clemency power be used either as a kingly "act of grace," or for "the public welfare"--not to excuse the president's men. The three recent presidents mentioned above may represent a disturbing new trend where a modern chief executive feels free to excuse his close associates in circumstances where his administration may be involved in wrongdoing, or to reward political donors. Using the clemency power to protect one's aides or help one's benefactors marks a misuse of the presidential pardon power. Brief History The presidential clemency power found in Article II of the Constitution vests in the president the ability to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The American clemency power was based on the British king's power to excuse offenses. In Great Britain, where an absolute monarch reigned virtually unchecked, the pardon power was often "abused for personal gain," according to political scientist David Gray Adler (Adler 1989, 213). He notes, "the king frequently used pardons as partisan indulgences for friends and supporters" (ibid., 209). In fact, "pardons frequently [were] sold" by Edward II (ibid., 227). Kings used clemency to consolidate power, concluding that mercy endears a king to his subject (Kobil 1991, 586). Despite their fear of tyranny, the American framers nevertheless added to the Constitution a very potent clemency power. They followed the British idea of vesting a clemency power in one person by awarding it to the chief executive or "president" in the Constitution, although many remained suspicious of a strong executive (ibid., 589-590). The most famous defender of a broad pardon power among the framers was probably Alexander Hamilton, who contended in Federalist No. 74 that without "the benign prerogative of pardoning ... justice would wear a countenance too sanguinary and cruel" (Hamilton, Madison and Jay 1999, 415). Vesting the pardon power in the president was the best decision because "the sense of responsibility is always strongest in proportion as it is undivided" (ibid., 415-416). In unsettled times characterized by "insurrection or rebellion," a "well-timed offer of pardon ... may restore the tranquility of the commonwealth"; practically speaking, a single person would be better equipped than a group to make such quick and difficult decisions (ibid., 417). Consistent with Hamilton's reasoning, the framers created this powerful prerogative despite the danger presented by a chief executive possibly forgiving treason by his own associates. Virginia delegate George Mason warned that the president might use the pardon power to derail investigations into unseemly executive behavior (Adler 1989, 221). …