Saturday, December 20, 2008

Saturday Evening Review: Pardons

Taking a bit of a break from grading con law exams, I heard an interesting segment on the NPR program "On the Media" concerning presidential pardon powers.  An MP3 file of the program is here (with any luck) and the website is here (the story "beg your pardon" allows access to MP3 file).  Thus, this week's Saturday Evening Review is less a "read" than a "listen" - - - as befits eyes tired from reading exams.

But after a bit of rest, the program led me to an interesting website Pardon Power maintained by P.S. Ruckman, Jr., Associate Professor of Political Science at Rock Valley College in Illinois.   Ruckman's blog mentions the "On the Media" story and has a bit to say about how he was quoted.  It's also pretty comprehensive - looking at gubernatorial pardon power as well.  But I must say I found the most interesting post on Ruckman's blog his "Presidential Pardon Watch List."  No surprise that the list includes  Scooter Libby, Bernard Kerkick, Ted Stevens, and Jeffrey Skilling, though I was more interested to see Martha Stewart and John Walker Lindh included. 

One of the best pieces of legal scholarship I've seen on the pardon power is by Mark Strasser, a ConLawProf at  Capital University Law School.  In The Limits Of The Clemency Power On Pardons, Retributivists, and The United States Constitution, 41 Brandeis L.J. 85 (2002), Strasser observes that while there is often much criticism about particular pardons, there is little consensus about "which uses of the pardon power are proper or appropriate."   Especially striking is Strasser's discussion of the possibility of a presidential "self-pardon":

      One issue that has received some attention is whether a President would be able to issue a pardon to himself. While there clearly is something unsettling about such an idea, at least some of the analyses offered regarding the reasons there cannot be such a right are unpersuasive. For example, some commentators reject that the President can pardon himself because, allegedly, that would make him his own judge. Yet, the Executive when issuing a pardon need not be acting as a judge, and there is no requirement, for example, that the President only give pardons to the most deserving individuals. The President is permitted to issue a pardon to help his friends, even if doing so might appear unseemly, and it is not at all clear that the Constitution permits one to benefit one's friends but not oneself. In any event, it may be difficult to draw a line between benefiting one's friends and benefiting oneself, because the President might issue pardons to others in order to protect himself. Indeed, there is historical precedent for pardons being issued to individuals so that the Executive might avoid embarrassment. 

       Arguably, if the President issues a self-pardon, there is a sense in which he has been placed above the law. Yet, the same might be said were the President's successor to issue a pardon to the outgoing President. Certainly, there are some differences between a President issuing a self-pardon and a President waiting for the next in office to issue the pardon -in the latter but not the former case the President could not be sure that the pardon would be issued. Yet, that difference is not enough to counter the charge that the President has been placed in a “special” position. Further, the President is clearly in a special position even if unable to pardon himself, precisely because the President can issue pardons to those who work for him.

       Even if the President could issue a self-pardon, a separate issue is whether a President would do so. Where the President does not issue a pardon to himself, he is subject to the laws which he is accused of having broken. Further, there are limits on the pardon power: (1) the President can only pardon a crime that has already occurred rather than a crime that is either in process or to be performed in the future; (2) the President cannot issue a pardon in cases of impeachment; and (3) the President does not have the power to issue a pardon for a violation of state law. Thus, there are a variety of reasons to think that even if the President has the power to issue a self-pardon, the “government of the United States [might still be] ... termed a government of laws, and not of men.” 

Id. at 150-151 (footnotes omitted).   

The prospect of Bush pardoning himself seems remote, despite several stories I've seen in the "alternative" portions of the blogosphere.  However, who Bush does pardon will be interesting to "watch"  in the coming days.


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