Sunshine on Presidential Pardons

Article excerpt

Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

Congress should cast sunshine on presidential pardons for political allies or friends. They create a dual system of justice one for the rich and powerful; another for the poor and powerless that spawns public cynicism about the law, for example, the pardons of former President Nixon and former Director of Central Intelligence John Deutsch.

Forcing pardons for loyal lieutenants or campaign contributors into the limelight will deter the president from their misuse. The recent conviction of Vice President Richard Cheney's former chief of staff, Scooter Libby, and speculation about a pardon from President Bush has renewed concern with political conflicts of interest that chronically beset the pardon power.

Article II, Section 2, Clause 1 of the Constitution crowns the president with authority to "grant Reprieves and Pardons .. except in Cases of Impeachment." The United States Supreme Court elaborated in Shick v. Reed (1975) that the pardon "power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress."

The Founding Fathers anticipated that the pardon power would be used to lessen the severity of draconian criminal codes, not to favor political friends and tarnish equal justice. Alexander Hamilton explained in Federalist 74: "Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access of exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel."

But the pardon authority regularly encounters conflicts of interest indistinguishable from circumstances where the president's subordinates or benefactors are suspected of crime. In the latter case, special prosecutors or independent counsels have been appointed free from the customary control of the president.

Special prosecutors were appointed to investigate Nixon's complicity in Watergate. Independent counsels were appointed to investigate the Iran-Contra affair and Whitewater. Patrick Fitzgerald was appointed special prosecutor to investigate the Valerie Plame leak case, which culminated in Libby's conviction for false statements.

The universe of persons subject to the jurisdiction of special prosecutors of independent counsels have included the president and vice president, officials in the Executive Office of the President, Cabinet members, the director and deputy director of central intelligence, the commissioner of internal revenue and the chairman and treasurer of the principal national campaign committee seeking the election of the president, and any officer of that committee exercising authority at the national level. …