TESTIMONY OF ALLAN J. LICHTMAN
CHAIR, DEPARTMENT OF HISTORY, AMERICAN UNIVERSITY
BEFORE THE SUBCOMMITTEE ON THE CONSTITUTION
FEBRUARY 28, 2001
The power to pardon is rooted deeply in the history of western civilization, including Great Britain. Following British tradition, and even going beyond the powers of the British crown, the framers of the Constitution vested the absolute power to pardon in the president and rejected proposals to require the consent of the Senate, to restrict the timing of pardons to after conviction, or to make an exception for the crime of treason.
Alexander Hamilton argued in The Federalist that a president could check the power of the judiciary in cases of "unfortunate guilt" - a term subject to numerous interpretations. He noted, "the reflection that the fate of a fellow-creature rested on his sole fiat would naturally inspire scrupulousness and caution." Hamilton also argued for a political use of pardons, to "restore the tranquility of the commonwealth," during times of insurrection, rebellion, war, and other threats to public order.
The pardoning power has been politically charged throughout American history and according to some observers has not always been exercised with Hamiltonian caution. The first nationally controversial use of the pardon came during the administration of America's second president, when John Adams rejected the advice of his entire cabinet are pardoned anti-tax rebels who had been sentenced to death for treason. He believed he was following the wise precedent of George Washington who had pardoned the men convicted in the Whiskey Rebellion. But Adams still incurred the wrath of some members of his own Federalist party who believed that he was encouraging insurrection. "Undue mercy to villains is cruelty to all the good and virtuous," charged on Federalist critic.
In perhaps the most controversial use of the pardon power, Andrew Johnson, a war Democrat who had become Lincoln's vice president and president upon Lincoln's death, issued thousands of individual pardons to ex-Confederates who did qualify under the general post Civil War amnesty. Johnson infuriated Republicans in Congress who believed he was jeopardizing the goals of the Civil War and opening a door to the return of white supremacy in the South. Johnson's pardons contributed to his impeachment by the Republican House of Representatives.
In more recent times, the pardon of wealthy and well-connected individuals has sparked controversy. In 1971, Richard Nixon pardoned labor racketeer Jimmy Hoffa of the Teamsters Union, without going through the full process for pardon review. The pardon led to charges of political collusion, insider pleading, and illegal campaign contributions. Later, it was found that Nixon had received illegal campaign contributions from the Teamsters.
Two famous and wealthy figures who were convicted of or pled guilty to making illegal campaign contributions to Nixon later received pardons. Ronald Reagan pardoned George Steinbrenner shortly before leaving office. George Bush pardoned Armand Hammer, who had previously given large soft-money donations to the Republican party.
The Steinbrenner and Hammer pardons prompted the same denunciations of the connections between pardons, power, and money that were heard after Bill Clinton's pardon of Marc Rich. The headline of an Opinion Editorial in the Los Angeles Times (February 26, 1989) read "When the Rich, Famous Steinbrenner Gets a Pardon, Justice Takes Strike 3." The article charged "The pardon reinforced a double standard of justice that cuts through our criminal justice system - one for the street thug and one for the corporate thug." An editorial in the St. Louis Post Dispatch (August 18, 1989), called the Hammer pardon "a misuse of the presidential pardon," and an Op Ed in the San Diego Union-Tribune (August 22, 1989) thundered that the Hammer pardon "is a disturbing example of how synonymous big money is with clout in American politics."
The two best-known and most controversial pardons of the late twentieth century were, of course, Gerald Ford's pardon of Richard Nixon in 1974 and George Bush's pardon of former Defense Secretary Casper Weinberger and other individuals implicated in the Iran-Contra scandal. After the Nixon pardon, then Senator Walter Mondale proposed a constitutional amendment giving congress the power to overturn a presidential pardon.
The Iran-Contra pardons which came after Bush's defeat in the presidential election of 1992 did not follow standard review procedures and involved individuals charged with corrupted government itself. Some charged that testimony about former-President Bush himself may have surfaced at a Weinberger trial. According to Tom Blanton, director of the National Security Archives at George Washington University, in a Washington Post article (February 26, 2001) the Iran-Contra pardons "went way beyond what is alleged in the Marc Rich case . . . . Both presidents made the highly unusual move of pardoning someone before trial. The difference is that George Bush was in line to be called as a witness at Weinberger's trial."
Bill Clinton's questionable use of the power to pardon is neither the first nor likely the last such episode in American history. The appropriate use of the pardoning power requires a delicate balance of caution and courage. A president must have the daring, like John Adams, to risk denunciation when the cause is just, but must take due caution to avoid special pleading, inside dealing, and even the appearance that pardons are for sale. The current controversy can ultimately benefit the American people if it focuses attention on the connections between money and policy in every phase of our public life.