The exercise of the pardon power and the consideration of its use in more recent times have perhaps excited more public dissatisfaction with and curiosity in the scope of the power and its political and legal dimensions than at any other point in our history. In particular, Americans have witnessed the possibility that President Nixon might pardon himself and more than 30 aides involved in Watergate Affair offenses, the unconditional pardon that President Ford granted to Nixon, and in December 1992 the pretrial pardon that President George Bush issued to former Secretary of Defense Casper Weinberger for charges stemming from his role in the Iran-Contra Affair. Other recent controversial uses of the pardon power include President Bill Clinton’s grant of pardons to 16 members of a Puerto Rican terrorist group, and President George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby, who had served as Chief of Staff to Vice President Dick Cheney found guilty of obstruction of justice and perjury before a grand jury in matters involving a leak of classified information regarding the decision to go to war against Iraq.
These controversial presidential pardons have one thing in common: each President circumvented the Office of the Pardon Attorney and the review process historically conducted to ensure a full, thorough and fair evaluation of petitions seeking a pardon. In each case, the petitioners did not comply with the established procedure, which requires an initial completion and filing of an application with the Office of Pardon Attorney. In each case, petitioners sought relief directly from the President. That deprived the executive of the benefits of the screening and evaluation of the petition for a pardon performed by attorneys in the pardon office, as well as their recommendation to the President. The pardons granted by Ford, Bush, Clinton and Bush tarnished their reputations. Manifestly, it’s not necessary for a President to seek advice from anyone while contemplating the issuance of a pardon; indeed, he may take his own counsel. But advice often clarifies the issues and questions surrounding a petition for a pardon that may prove helpful to the President.
On September 8, 1974, President Ford granted a full and unconditional pardon “for all offenses against the United States which Richard Nixon has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.” Ford’s pardon of Nixon stunned the nation, since he had, in answer to a reporter’s question, declared that a pardon to Nixon would be premature if granted before the legal process had run its course. Legally, a presidential pardon may be granted before conviction, and even before indictment. The Framers, as we have seen, anticipated that a pre-trial pardon might be useful. So there was no question of the legality of the pardon, though many questioned its wisdom since, critics argued, it short- circuited the criminal justice process and a possible conviction of Nixon. Ford may have paid a high price for pardoning Nixon. Indeed, public resentment of the pardon may have contributed to Ford’s very close loss to Jimmy Carter in the 1976 presidential election. In any case, President Ford’s rationale for granting a pardon to Nixon reflected noble aspirations. He told a House Judiciary Committee, as well as the American people in a nationally televised address to both houses of Congress that the nation was paralyzed by Watergate and that it was necessary to move past the trauma of the event, something he believed was not possible without the pardon, ending the suspense of a possible criminal trial for Nixon, grounded on his obstruction of justice.
While Ford’s pardon of Nixon likely remains the most controversial pardon in American history, there was no reason to believe that it was an act of self-aggrandizement. That is to say, he stood to gain nothing personal from the act of pardoning Nixon. But to many critics and skeptics, President George H. W. Bush’s pardon of former Secretary of Defense Casper Weinberger, and six others, on December 24, 1992, for their role in the Iran-Contra Affair, was suggestive of self-interest. Bush’s pardon of Weinberger was criticized because he had a conflict of interest. When the pardon was granted, it halted the criminal proceedings against Weinberger, who was set to go to trial. The Independent Counsel, Lawrence Walsh, was prepared to ask Weinberger to testify about the accuracy of notes he had taken during meetings of President Reagan’s cabinet, where the Iran-Contra Affair had been discussed. Weinberger’s notes indicated that Bush, then serving as Vice-President, had been involved in discussions and had declared his support for the Iran-Contra program. Bush, it will be recalled, had stated during the 1988 presidential campaign that he had known “nothing” about the Iran-Contra scandal that he had been, in his own words, “out of the loop.” Aside from his dissembling during the campaign, Bush’s concern about Weinberger’s testimony at trial was that Weinberger would, indeed, testify that his notes were accurate, that Bush had supported the Iran-Contra program, which would enable Walsh to seek an indictment against President Bush who, in the November 1992 presidential election, had been defeated by Bill Clinton. Critics pointed out that Bush’s pardon of Weinberger spared Bush, that it represented, precisely, the Framers’ fear that a President might pardon an aid, ally or crony to “screen” himself from responsibility or punishment. Lawrence Walsh was infuriated. As he described the pardon in his book, Firewall, Bush had turned “the trail cold,” and deprived the American people of knowing the truth about the Iran-Contra Affair.
Pardons issued by Bill Clinton in the final months, weeks and hours of his Presidency generated considerable controversy and criticism. On August 11, 1999, President Clinton granted a pardon to 16 members of a Puerto Rican terrorist group, the FALN (Armed Forces of Puerto Rican National Liberation). Fourteen accepted the conditions attached to the clemency, including renunciation of violence. This group had been convicted and imprisoned for seditious conspiracy, for planting more than 130 bombs in public places, including restaurants and shopping malls. Six people were killed and more than 70 people injured. Clinton’s act released members of FALN from prison after serving less than 20 years of terms running from 55 to 90 years.
Clinton’s pardon of FALN members was met with widespread criticism from editorialists and television commentators, as well as members of the House and Senate. The FBI was opposed to the pardon, which earned sharp, bi-partisan condemnation. The House resolution passed by a vote of 311 to 41. A Senate resolution criticizing the pardon was adopted five days later, 95-2. The clemency triggered a renewed call for a constitutional amendment limiting the President’s pardon power by giving the House or Senate, or both chambers, a veto over presidential acts of clemency.
In his last hours in office, President Clinton granted pardons to 140 people and commuted 36 sentences. Most of the individuals on that list, according to the Office of the Pardon Attorney, had not applied for pardons. Nor did the FBI conduct a record check on those who had received clemency from Clinton. The most prominent of those pardoned was Marc Rich, charged in 1983 with conducting the largest tax-evasion scheme in American history. Rich had fled to Switzerland, rather than standing trial. His former wife, Denise Rich, met with President Clinton and donated some $450,000 to Clinton’s presidential library in Little Rock, in addition to a contribution of more than $1 million to the Democratic Party. A close friend of Denise Rich also met with President Clinton and promised to raise $1 million for the Clinton Library.
President George W. Bush’s commutation of Scooter Libby’s sentence on charges of obstruction of justice was similarly controversial. Libby, who had served as Chief of Staff for Vice President Cheney, was investigated by a special counsel for the leak of classified information regarding the Bush Administration’s decision to go to war against Iraq in March of 2003. Libby was sentenced to 30 months in prison, fined $250,000 and given two years’ probation on conviction of obstruction of justice and perjury before a grand jury. Vice President Cheney had lobbied President Bush to issue a full pardon to Libby, but was unsuccessful. Still, Bush’s reduction of Libby’s sentence from 30 months to zero months surprised many observers who noted the substantial sanctions imposed upon agency whistleblowers for releasing confidential documents to the public. Bush believed the sentence to be “excessive,” but critics wondered why, if that were so, the sentence was commuted to 15 months, or even 10 months.