Academic journal article Presidential Studies Quarterly

The Law: When Presidential Power Backfires: Clinton's Use of Clemency

Academic journal article Presidential Studies Quarterly

The Law: When Presidential Power Backfires: Clinton's Use of Clemency

Article excerpt

The Constitution generally requires Congress and the president to reach a consensus through the regular legislative process. However, President Bill Clinton will be remembered not for what he did with Congress but what he did without it. On a broad array of issues, he acted independently through prerogatives given him by express and implied powers (removals, vetoes, recess appointments, executive orders, proclamations, and pardons) and through prerogatives not given him (taking the country to war). His achievements through these instruments of power overshadowed anything he tried to do by submitting legislation. What emerges most clearly in the Clinton record are his unilateral actions. Oddly, it was the exercise of presidential prerogatives--with no possible interference by Congress or the judiciary--that inflicted the most damage to Clinton's presidency.

Travel Office as a Prelude

This article focuses principally on the pardon power, but it is instructive to recall a problem that Clinton encountered in his first few months in office: the White House Travel Office. No one questioned his constitutional authority to remove the seven employees. Clearly, they served at the pleasure of the president. Unilateral executive action in this area should have been easy and uncomplicated. Instead, it became a multiyear nightmare. Clinton (or an aide) could have told the employees, "Thanks for your help, but we're bringing in our own team. I'm giving you a week's notice." In a remarkable show of mean-spiritedness, the employees were summarily fired with a cloud over their heads, first for supposedly following poor management practices and second for possible criminal conduct. The administration announced that the FBI had begun an investigation. Moreover, the way the White House replaced the seven employees raised charges of nepotism and cronyism (Fisher 1997, 78-79).

Years of congressional inquiries, General Accounting Office investigations, and independent counsel probes followed, creating havoc within the White House. The final stage was a report in 2000 regarding the role played by Hillary Clinton. Although Independent Counsel Robert Ray said there was insufficient evidence to seek criminal charges against her and that no indictments would be brought, the report was far from an exoneration. In several places, it concludes that her statements under oath were factually false but that it would not be possible to prove beyond a reasonable doubt that she knew the testimony to be false and knowingly gave false testimony (Final report 2000, 234, 17, 27-30, 233, 237-38, 242-43).

The Pardon Power

Although constitutional powers in the United States are typically shared-as with appointments, treaties, and war--the president's power over pardons is exclusive. Article II of the Constitution gives the president the power to grant "Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." In Federalist 74, Alexander Hamilton emphasized that "humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed." Without that discretion, "justice would wear a countenance too sanguinely and cruel."

There are two express restrictions on the president. The pardon power applies to offenses against the federal government (not against the states and localities), and the president may not use the power to countermand a legislative decision to impeach and remove. As Justice Joseph Story (1987) noted, the exception for cases of impeachment

   takes from the president every temptation to abuse it in cases of political 
   and official offences by persons in the public service. The power of 
   impeachment will generally be applied to persons holding high offices under 
   the government; and it is of great consequence, that the president should 
   not have the power of preventing a thorough investigation of their conduct, 
   or of securing them against the disgrace of a public conviction by 
   impeachment, if they should deserve it. … 
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