Delivering Pardons

John Falconer, Phd.

There is only one unchecked presidential power in the United States Constitution, and that is the president's power "to grant Reprieves and Pardons for Offenses against the United States, except in Cases of
Impeachment."

The pardoning power is as old as civilization. Indeed, one argument for including it in the Constitution was that every civilized nation has resorted to it. Of course, the Anti-Federalists, particularly George Clinton, objected to its inclusion in the Constitution because it is the power of a king unbecoming to a democracy with its reliance on the justice of the people instead of the discretion of a tyrant.

Wherever power is lodged with good intentions, there it may be used properly or it may be abused by those persons wielding it. And so the pardoning power has been, on the one hand, used to advance the public welfare, especially in the furtherance of equitable penal reform, and, on the other hand, it has been abused for the private gains and ends of those who exercise it.

Therefore, In all events, the power to pardon is one that should be scrutinized by everyone. Usually it is ignored except in high-profile cases. For example, just prior to leaving office, President Clinton pardoned fugitive billionaire commodities trader Marc Rich, outraging prosecutors and many Republicans (and, of course, many Democrats). Stories were then floated in the media that newly elected President Bush was seeking to have the pardon reversed, based on a legal technicality argued in the nineteenth century: that the pardon was not delivered, that it must be served on the accused or his attorney. (1)

This story seemed patently absurd to anyone familiar with the sovereign nature of the pardon power as upheld by the courts and with the nineteenth-century cases involving the delivery of pardons. It appears that it was yet another case of political posturing before an ignorant public in order to gain votes, similar to last year's House and Senate bills to regulate the United States Pardon Attorney rather than amend the Constitution,

White House spokesman Ari Fleischer quickly repudiated the story that President Bush intended to reverse Clinton's pardon of Marc Rich:

"President Bush will not explore whether or not he has the authority to take any action in the case of his predecessor's pardons....The president under the Constitution has unfettered authority to grant pardons, and that is President Bush´s judgement....The president may
not have agreed with all of the pardons his predecessor granted...Our lawyers were looking into the question of whether one president has any options in succeeding another president, and the president has not taken action and so nothing will proceed....There´s a bigger issue involved here, and that is the president´s constitutional prerogatives are unfettered when it comes to pardons." (Jan 22, 2001, by Deborah Charles, 'Bush Will Not Try To Reverse Clinton Pardons', Reuters)

It is hardly surprising that President Bush would quickly assert his sovereign power and abandon any effort to reverse the pardon, even if the Justice Department lawyers had found a good argument for the Supreme Court to hear. It has been alleged that one of the greatest stains on the United States presidency was caused by the abuse of the pardon power by his own father who, while he himself was an important subject of investigation, pardoned six henchmen in the infamous Iran-Contra Affair, calling them true patriots and good and honorable men, while complaining about the politicization of political differences; he referred to the noble American tradition of pardoning, harkening back to the notorious pirate Jean Lafitte, who had the foresight to support the winners of the War of 1812--Lafitte was pardoned by President Madison, whereupon the pirate sailed off with his plunder.

It is believed by many experts familiar with the Iran-Contra affair that the highest levels of the Reagan-Bush administration were in one way or another responsible for multiple crimes against humanity including murder, rape, and torture, the sale of weapons to an enemy of the United States via its puppet in the Middle East, private profiteering, drug-dealing, as well as the deliberate disregard of the will of the people as expressed by legislation. This was followed by a coverup involving offenses such as lying to the public, misprision, perjury, and obstruction of justice. Hence it is understandable that the presidential pardoning power would be a sensitive issue better retained in the hands of the man who has inherited the Reagan-Bush legacy, President Bush, Jr.--his supporters claim that he is his own man gotten out from under his father's shadows, yet he has brought those shadows into office with him.

Be that as it may, the legal technicality that might have been raised by the Bush attorneys in Marc Rich's case is one that everyone interested in freedom should review in order to better understand the pardoning power. A person might want his pardon in hand to prove its existence in the old days. But the idea that a pardon should be actually delivered today in order to be effective seems like a ridiculous technicality when applied to a person who desperately sought that pardon. Yet there are certain arguments for the necessity of delivery.

For instance, how would you feel if you turned on the television to discover that the President has just pardoned you for a murder you were not even aware of? It might be nice to have the pardon in hand in order to know what was going on, if not to protect you from prosecution. Still, if an attempt was made to serve a pardon on you for a murder you did not commit, you might not want accept it: you might want to defend yourself in court even though you knew that courts had opined that pardons do not mean pardoned persons are guilty. Or, what would you do if the pardon was delivered to coerce you, by virtue of its grant of immunity from prosecution, to testify against other people?

President Jefferson, who had once argued that the power to pardon was superfluous in a republican form or government (2), tendered a pardon to Dr. Eric Bollman to coerce him to testify against Aaron Burr before the grand jury in Richmond. Bollman refused to accept delivery of the pardon because he felt it would be an admission of guilt that would ruin his reputation. Chief Justice Marshall made no ruling on the delivery issue at that time because Bollman did not plead the Fifth Amendment.

But in the 1833 Wilson case--where Wilson refused a conditional pardon from Andrew Jackson because acceptance would leave him liable under other cases merged into the one putting his life at stake--Marshall had his opportunity to define a pardon. He linked the pardoning power to that of the English kings, and defined it as an "act of grace, proceeding with the power intrusted with the execution of the laws....It is the private, though official, act of the executive, delivered to the individual for whose benefit it is intended, and not communicated officially to the court." Moreover, he said that "a pardon is a deed to the validity of which delivery is essential; and delivery is not complete without acceptance; it may then be rejected by the person to whom it is tendered, and if it be rejected, we have discovered no power in a court to force it to him."

The idea that a pardon must be delivered and accepted was denied by Justice Holmes in the 1927 case of Biddle v. Perovich, where Holmes stated that "A pardon in our day is not a private act of grace from an individual happening to possess power. It is part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed....Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determined what shall be done."

It appears in that case that Holmes viewed the pardon as a tool of justice appertaining to the degree punishment, as an instrument of commutation: the substituting of a lesser penalty for a greater one. The opinion does not address the question of a full pardon; whether, for instance, a president could grant a full pardon against the will of someone who was, say, innocent, and did not want his reputation ruined despite the legal ruling that a pardon "blots out" the crime.

However, we know that Marc Rich applied for his pardon; he does want it; he would not refuse it. Of course I am speculating above on the exact nature of the Justice Department's proposed legal challenge to the pardon based on non-delivery. We may never know what argument was actually entertained. I suspect it was just another official canard; I do not think that President Bush had any intention whatsoever to attempt to reverse Clinton's pardon of the filthy rich fugitive. Hence business continues as usual while the general public is made to believe that serious attempts at reform are being made.

At the outset of this essay I mentioned that a power can be used properly or it can be abused by whoever wields it. Strictly speaking, "abuse" might be defined as a violation of the terms of an agreement, in this case the social contract we call the Constitution, a contract ideally delivered to and accepted by us when we are conceived, or a certain period thereafter as determined by law. Because the pardoning power is discretionary, and because the sovereign authority exercising it can make any excuse she or he likes to justify a pardon (3), perhaps there can be no provable legal abuse of that power excepting, of course, in cases of impeachment.

The clamor for and against pardons in high-profile cases will undoubtedly continue indefinitely unless the power itself is reformed by constitutional amendment. Until then we can beg the acting sovereign, who is, in this particular power of pardon, above the law, for his or her mercy. We shall, then, on certain peculiar occasions, receive that clemency, regardless of the Attorney General's procedures and advice, regardless of the objections of legislators and judges. And that is our mysterious "general will" as it is presently represented in the United States Constitution.

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(1) "Newsweek reported in its edition out Monday that Bush Justice Department lawyers had found 19th century court cases suggesting a pardon was much like a warrant in that it must be served on the person or his lawyer to be valid.
Some of Clinton's pardons, though signed by the president, had not been processed at the Justice Department and awaited delivery, including Rich's, Newsweek said. 'By Saturday night, the lawyers were still hunkered down, arguing the pros and cons´ of trying to undo the pardon by declining to deliver it, the magazine said.'"(Jan 28, 2001 by Jim Wolf. Reuters, 'Clinton's Rich Pardon Could Be Up In Air')

(2) Another constitutional power Jefferson objected to was impeachment. He had seen it in action and called it a farce. Yet he did not hesitate to pull the necessary strings to use it in an attempt to smother the U.S. Supreme Court in its crib where it was, in its infancy, struggling for independence. It was said that John Marshall literally trembled for its safety.

(3) The Federalist Framers dismissed the concern with presidential powers with the argument that the president can be impeached. The Anti-Federalists also opposed the inclusion of the Senate in the Constitution, arguing that it is another vestige of royal tyranny, a replication of the king's Court. As it is now constituted, the president with one senator more than a third of the senators can run rough shod over the American people at will. Jefferson was correct when he said impeachment is a farce; the evidence of that was recently before us during the mock trial of President Clinton, with an obsequious Chief Justice presiding over a foregone conclusion.


Sources:

Dumbauld, Edward, THE CONSTITUTION OF THE UNITED STATES, Norman: University of Oklahoma Press, 1964

McDonald, THE AMERICAN PRESIDENCY, An Intellectual History, Lawrence: University Press of Kansas, 1994

ENCYCLOPEDIA OF CRIME AND JUSTICE, Ed. Sanford H. Kadish, New York: Macmillan, 1983

Watson, David K., THE CONSTITUTION OF THE UNITED STATES, Its History Application and Construction, Chicago: Callaghan, 1910

Story, Joseph, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, Boston: Little, Brown, 1873