Pardon me?

As the media looks back through rose-colored glasses at another dismal President, Gerald R. Ford, the subject of the power of presidential pardon comes up, if only obliquely, due to Ford’s pardon of Richard Nixon, a controversial and (rightly) unpopular act that may have contributed to his defeat in 1976.

It’s remarkable how infrequently this power has been examined, even in legal circles. It originates from Article II, section 2 of the Constitution: “...he [the President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The ideas of our nation’s founders almost never seem naïve to me—much of their thought was based on a healthy awareness of the inherent dangers of political power. But in this case I wonder. Of course they couldn’t foresee the extreme corruption of government as it has developed in the last century, culminating in our current situation, in which the White House is operated by what amounts to a criminal gang. But surely there were precedents in the 18th century for heads of state excusing the crimes of their families and associates. It would seem that the motive for instituting this power in the Constitution was, in fact, distrust of the tendency of courts towards severity in punishment. It was common in England for minor offenses to carry the death penalty. Alexander Hamilton thought that the conscience of a single person, the President, was necessary as a corrective to such unjust severity. In Federalist #74, he wrote: “The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind.”

In regard to the second clause of this sentence, I believe history has proved Hamilton to be naïve. Weakness and connivance no longer carry enough shame to prevent the abuse of this power. Bill Clinton pardoned his own brother Roger, and this is only one example of that President’s high tolerance for weakness and connivance. Of course, it’s argued that it can be politically risky to pardon someone—but in Clinton’s case he was at the end of his final term, so there was virtually no political fall-out for him to consider. He pardoned former Arizona Governor Fife Symington in a case involving the defrauding of union pensions. It turns out that Symington, an old pal, had once saved Clinton from going under in a riptide. The working people who were Symington’s victims mattered for nothing compared to the personal loyalties of the wealthy Clinton.

Ford’s pardon of his predecessor was remarkable in that Nixon had not been charged with any crime. It was not at all certain whether the special prosecutor would pursue an indictment of Nixon. Ford’s action basically cleared Nixon of any charges that might be made against him in the future regarding actions he performed when President.

The impression of weakness and connivance is very much magnified by the pre-emptive nature of the pardon. It’s one thing to pardon someone who is in jail, or even someone who’s been indicted and is facing trial, but pardoning someone before he’s even been charged with anything is about as naked an exposure of political favoritism on the part of an arrogant elite that one could ever expect to see.

The official excuse for this was that the prospect of having a former President go on trial would be too much of a trauma for the nation. Thus a thoroughly phony principle of protecting the public from emotional upheaval was made to supersede the ancient, venerable, and simple principle of justice. The office of the President was cloaked in a bogus aura of imperial prestige, thus putting the President effectively above the law. It is dangerous to underestimate the power of this prestige, as we can see from the behavior of the current occupant, who has advanced the idea of the omnipotent “unitary” executive who is subject to no law but is himself the measure of all law, just like the kings and emperors of old Europe.

Now we discover, according to Ford’s memoirs as leaked by The Nation, that Nixon’s chief of staff, Al Haig, offered to Vice-President Ford the possibility of Nixon resigning in return for an agreement that Ford (who would of course have become President when Nixon resigned) would grant Nixon a full pardon. Oh, what a tangled web we weave! Ford denies agreeing to this, but when such a subject is even broached, involving the assumption of the Presidency by one politician depending on the pardon of another, one can see what a nasty can of worms the power of pardon can become.

Now that we’ve come to the point where we have a President who has no shame at all, a President who insists that the Constitution is just a “goddamn piece of paper,” the power of pardon (granted to him, of course, by that same Constitution) grants the Liar-in-Chief a wider range of corruption. Consider the Scooter Libby case, which has the potential of exposing a criminal conspiracy to lead the nation into a war under false pretenses. Bush could pardon Libby at any time, and for anything he might have done while he worked for the White House, not just the perjury charge. To be honest, I’m not sure why it hasn’t happened yet. As hard as it is to imagine from a President so indifferent to criticism, it could be that Bush and his handlers fear that the political fall-out from such a pardon (in a case involving, we need to remember, the outing of a CIA agent) could be too devastating for Republicans who have already been rocked by the disastrous war and various scandals. Perhaps they fear it could tip the White House to the Democrats in ’08. But when it comes down to a choice between losing politically and having the criminal actions of Bush, Cheney, et. al., exposed in a court of law, I would think that the current regime would eventually choose political loss. (In addition to the Libby case, it has become evident in recent months that Bush is scrambling to make everyone involved in his murders and tortures immune from prosecution. That was why the Military Commissions Act had to be passed in a big hurry.)

To sum up: the Nixon pardon stands as a warning to the nation. The more corrupt the political elites become, and the less accountable they are for what they do, the more likely it will be that the President’s power of pardon will be used in order to conceal corruption and evade justice. I might dream of amending the Constitution to eliminate or at least limit this power, but the chances are slim to none. We can hope, however, that the issue will become more prominent in the public mind, and that a debate will be opened in legal circles and in society at large regarding the proper use and function of this power.