The President’s Absolute Power

With a stroke of the pen, President Bush could grant a full pardon to former White House aide and convicted perjurer Scooter Libby. Why were presidents granted the right to overturn decisions made by juries and the courts?

Where did the pardon originate?

It's in the Constitution. Article II, Section 2 says that the president 'œshall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.' In our system of checks and balances, all other major presidential actions require the consent of Congress and are subject to judicial review. The pardon is the only executive power that is entirely unchecked. 'œHistorically,' says DePaul University law professor Robert Burns, 'œit is the power of the crown, passed down to the president.'

Why did the Founders give such power to presidents?

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It was Alexander Hamilton's idea. Shortly before the Constitutional Convention of 1787, Daniel Shays of Massachusetts led a tax rebellion against the fledgling U.S. government. The revolt was put down, but Hamilton came to believe that the possibility of pardons would help assure citizens their new government would be flexible and forgiving. 'œIn seasons of insurrection or rebellion,' he wrote in The Federalist No. 74, 'œthere are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.' Denying presidents that option, Hamilton said, would give justice 'œa countenance too sanguinary and cruel.' Despite concerns in some quarters about granting too much power to the president (see box), the convention approved Hamilton's language.

How have presidents used pardons?

From the start, they were often employed to forgive transgressions deemed to be based on personal conviction. In 1795, George Washington issued the very first presidential pardons to leadersof the violent Whiskey Rebellion, which was a protest against the federal excise tax on liquor. Abraham Lincoln and An­drew Johnson granted clemency to hundreds of thousands of Confederates. Harry Truman dispensed 9,000 pardons to soldiers who had deserted during peacetime. Jimmy Carter pardoned thousands of Vietnam-era draft dodgers. The record for individual pardons is held by FDR'”3,687, many to soldiers convicted of minor crimes during World War II.

Why else have pardons been granted?

To right a perceived historical injustice. Gerald Ford pardoned Iva Toguri D'Aquino, aka 'œTokyo Rose,' 28 years after she was found guilty of treason, amid evidence that she had gotten an unfair rap. Bill Clinton gave a posthumous pardon to Henry Flipper, West Point's first black graduate, who was dishonorably discharged in 1882 despite being acquitted of embezzlement. Oftentimes, though, it's whom you know, not what you've done, that counts.

Have presidents favored their friends?

Yes. President Lincoln pardoned several childhood chums from Kentucky. Truman did the same for political cronies from Missouri. Ronald Reagan pardoned New York Yankees owner George Steinbrenner for making illegal contributions to fellow Republican Richard Nixon. George H.W. Bush let businessman Armand Hammer off the hook for the same crime. The first President Bush, on his last day in office, also pardoned several Iran-Contra figures, including Caspar Weinberger and Elliott Abrams. Clinton engaged in a veritable last-minute orgy of pardons, including one to fugitive tax evader Marc Rich, shortly after Rich's ex-wife, Denise, donated $450,000 to the Clinton library.

What if you don't have connections?

Then you can apply for a pardon through channels. In 1891, Congress set up the Office of the Pardon Attorney within the Justice Department and charged it with reviewing pleas for clemency. Any criminal offender can submit a petition, provided the guilty party has served his jail term and kept a clean record for at least five years. The office then recommends whether the president should grant the pardon.

So common crooks can get off?

Yes, but that's becoming increasingly rare. James Madison pardoned convicted pirates so they could serve in the Navy; Theodore Roosevelt pardoned a number of Wild West outlaws, including the armed robber Al Jennings, known as the 'œredheaded terror of the Southwest.' But in recent years, presidents have become reluctant to exercise this kind of clemency, fearing a public backlash. Today, criminals who get pardoned tend to be nonviolent small-timers. The first President Bush pardoned a man who had stolen 12 six-packs of beer in 1963. He also pardoned a Kentuckian who had been convicted in 1947 for moonshining.

Do pardons have political repercussions?

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