Column
from U.S. Senator Russ Feingold
An unpardonable use of power
November 20, 2008
Salon
A departing president probably
can't help thinking about the judgment of history. At the end of eight
years, President Bush likely isn't any different. With the nation's
attention focused on his successor, it may seem as if there is little
opportunity left for the current president to affect how he will be
viewed. But there is one power left -- the power of the pardon -- that
could, if it's abused, create a controversy that both the president
and the public could live without.
The power of the pardon is
close to absolute. Short of interfering with their own impeachment,
presidents can pardon whomever they choose. At the end of his term,
however, this president should think twice before issuing pardons that
call his judgment, and the integrity of the rule of law, into question.
If President Bush were to
pardon key individuals involved in the misdeeds of his administration,
from warrantless wiretapping to torture to the firing of U.S. attorneys
for political reasons, the courts would be unable to address criminality,
or pass judgment on the legality of some of the president's worst abuses.
Issuing such pardons now would be particularly egregious, since voters
just issued such a strong condemnation of the Bush administration at
the ballot box. There is nothing to prevent President Bush from using
the pardon in such a short-sighted and self-serving manner -- except,
perhaps, public pressure that may itself be a window on the judgment
of history. Everyone who can exert that pressure, from members of Congress
to the press and the public, should express their views on whether it
would be appropriate for President Bush to use his pardon power in this
way.
Controversial pardons are
nothing new, of course. President Gerald Ford's pardon of Richard Nixon,
which was a source of furious national debate, is perhaps the most famous
of these. More recently, President Clinton issued a series of last-minute
pardons that were highly criticized. Yet the power can also be used
to show mercy -- Clinton used the pardon power a number of times to
lessen the impact of draconian mandatory minimum sentences for certain
drug offenders.
The use of the pardon power
throughout history has been just as varied. Presidents Andrew Johnson,
Buchanan and Carter used the pardon power to try to heal national divisions
and promote unity. Buchanan, for instance, in return for an oath of
loyalty to the nation, pardoned Mormon settlers in Utah who had been
accused of treason. It was Johnson's extensive use of pardons after
the Civil War that prompted Congress to try to limit the pardon power,
which led to the Supreme Court's seminal decision, Ex parte Garland,
confirming its nearly unlimited scope. The pardon power outlined in
the Garland decision is sweeping -- "it extends to every offence
known to the law, and may be exercised at any time after its commission."
But that doesn't mean that all pardons are appropriate or serve the
common good. The current president's own father, George H.W. Bush, pardoned
six participants in the Iran-Contra plan, including Caspar Weinberger,
Elliott Abrams and Bob McFarlane, whose trials might have exposed his
own involvement.
Writing in the Garland case,
the Supreme Court said of presidents' pardon power that "the benign
prerogative of mercy reposed in him cannot be fettered by any legislative
restrictions." The history of the use of the presidential pardons
shows that while presidents sometimes exercise the benign prerogatives
of mercy, that is not always their motivation. Nonetheless, while there
may be almost no legal limits on presidential pardons, there certainly
are limits to what the public will see as a reasonable use of the power.
The current president, who has shown such disrespect for the rule of
law during his term, will have a chance to show to all of us, and to
history, whether he respects it enough not to short-circuit the judicial
process after he leaves office. |