THE PRESIDENTIAL PARDON POWER
by Jeffrey Crouch. Lawrence, Kansas: University Press of Kansas, 2009. 224pp. Hardback. $34.95. ISBN: 9780700616466.
Reviewed by Graham G. Dodds, Political Science Department, Concordia University. E-mail: g.dodds [at] concordia.ca.
Article II of the United States Constitution says that the president “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The president’s pardon power is familiar to even casual observers of American politics, and at times its use has occasioned significant controversy, but the academic literature on pardons is not as extensive as one might think: Jeffrey Crouch’s THE PRESIDENTIAL PARDON POWER purports to be the first book-length treatment of it in 22 years. Crouch’s book combines history, politics, and law in chronicling and critiquing presidents’ use of the pardon power, which he also terms the clemency power.
The book’s chapters are organized more or less chronologically, with some thematic differences. Chapter 1 examines the historical roots of the clemency clause. Crouch briefly surveys pardons from ancient Babylon, Greece, and Rome, through seventeenth century England, to debates among the American founding fathers about whether and where to have the pardon power. He identifies five related but distinct forms of presidential clemency: full pardon, commutation, remission of fines or forfeiture, reprieve, and amnesty. And he describes the evolution of the Office of the Pardon Attorney in the Department of Justice and the process by which clemency applications are initiated and considered, although presidential pardons do not always follow the process.
In Chapter 2, Crouch investigates the nature, extent, effect, and limits of clemency power. He distinguishes two traditional rationales for pardons: as an “act of grace” for the individual being pardoned and, alternatively, for the good of the public (p.28). Crouch notes that these rationales pull in different directions, but he regards both as legitimate reasons for presidential pardons. More broadly, he claims, “A presidential pardon power is necessary because a perfect justice system is impossible to create. . . The clemency power, simply put, is intended to provide for a solution in cases where . . . normal legal procedures have produced an outcome that seems unjust” (p.29).
This chapter also addresses the federal judiciary’s interpretation of the president’s pardon power. Crouch’s quick review of relevant court cases indicates that a pardon can be issued at any time after a crime is committed (EX PARTE GARLAND), an individual cannot refuse a pardon (BIDDLE v. PEROVICH), a pardon may be conditional (UNITED STATES v. WILSON and SCHICK v. REED), and Congress cannot override a presidential pardon (UNITED STATES v. PADELFORD and UNITED STATES v. KLEIN). Crouch also notes that courts [*722] have identified several limits on the president’s pardon power, and he finds some jurisprudential support for the idea that Congress may have its own pardon power (THE LAURA and BROWN v. WALKER).
Chapter 3 is devoted to instances of presidential clemency before Watergate. Crouch briefly notes the early pardons for the Whiskey Rebellion, Fries’s Rebellion, people prosecuted under the Alien and Sedition laws, and the Barataria pirates (p.56), but there is very little discussion here of Lincoln and Johnson’s multiple pardons for the Civil War (though they come up briefly in the previous chapter’s review of cases) or of several nineteenth century presidents’ pardons of Mormons. In the twentieth century, Crouch discusses presidential grants of clemency for Eugene Debs, Marcus Garvey, Oscar Collazo, and Jimmy Hoffa (p.56), and in the mid-twentieth century he contends that JFK and LBJ were exceptionally generous with clemency (p.60).
Chapter 4 examines Gerald Ford’s controversial pardon of Richard Nixon in September, 1974. Crouch dismisses five common arguments against the pardon’s legality (p.67), and he finds no evidence of a covert deal by which Nixon would give Ford the presidency if Ford would give Nixon a pardon, even though Ford later admitted that Alexander Haig had floated the idea of such a quid pro quo a week before Nixon resigned. Crouch also contends that Ford could have mitigated the harsh public reaction against the pardon if he had just done a better job of managing the public presentation of it (p.73). More important, Crouch contends, quite plausibly, that Ford’s pardon of Nixon fundamentally changed the politics of pardons (pp.61, 65). This was because “The Nixon pardon showed future presidents how much a single clemency decision could affect their public standing” (p.84).
But the change occasioned by Ford’s pardon of Nixon also concerned the nature of investigations of the executive branch and their impact on pardons. For this reason, Chapter 5 examines special counsel investigations both before and after Watergate. Crouch discusses four pre-Watergate investigations of the executive branch by outside prosecutors in the first half of the twentieth century, then explains how Watergate and the “Saturday Night Massacre” led to the independent counsel law in 1978, then discusses executive branch investigations under Carter, George H. W. Bush, and Clinton. Crouch contends that the independent counsel law had the ironic and unintended consequence of giving presidents political cover for pardons, as a president could “thumb his nose” at an oppositional Congress and claim that pardons of administration officials were justified because of politicized external investigations of the executive branch (pp.85-87). Moreover, Crouch contends that the independent counsel law has continued to exert such an influence, even though the statute lapsed in 1999: “the independent counsel’s lasting legacy – its introduction of political considerations into judicial investigations – is alive and well” (p.87).
Chapter 6 analyzes controversial uses of the pardon power by the three most recent presidents. Crouch considers George H. W. Bush’s pardon of Caspar Weinberger and five other officials [*723] involved in the Iran-Contra scandal, which he claims were driven by a desire to avoid potentially embarrassing testimony. Bush issued the pardons a month after losing his reelection bid, and he wrote in his diary that “the pardon of Weinberger will put a tarnish, kind of a downer, on our legacy” (p.104). Crouch then discusses Clinton’s conditional clemency offer to sixteen FALN terrorists and some of his “last minute” pardons issued just hours before his term ended, especially for Marc Rich, who evaded prosecution for tax-evasion by living in Switzerland. Crouch contends that these actions were intended to boost Hillary Clinton’s Senate bid and to reward a generous donor to Clinton’s presidential library, respectively. He also notes that the Rich pardon was condemned by votes in both the U.S. House and Senate and that Clinton later took the unusual step of trying to justify it via a New York Times op-ed. Crouch then turns to George W. Bush’s 2007 commutation for Vice President Dick Cheney’s former chief of staff, I. Lewis “Scooter” Libby, who was convicted of four felonies following a pre-Watergate style special counsel investigation of the public identification of CIA agent Valerie Plame. Bush resisted conservatives’ demands for a full pardon, and while his commutation meant that Libby did not serve a single day of his 30-month prison term, it left in place the stigma of conviction, a $250,000 fine, and two years of probation.
The book concludes with a chapter that reviews some of the main themes of earlier chapters and further addresses the politics of pardons after Watergate. Beyond the points noted above, several major claims emerge from the book. First, Crouch indicates that the president’s pardon power is fundamentally political. This should come as no surprise, and of course political scientists like to claim that virtually everything is in some way political, but the point deserves to be made. Even though the pardon power is expressly noted in the Constitution and has been affirmed by a series of Supreme Court rulings and has mostly been used without much fanfare, its use is a political act, and it is governed by political considerations.
Second, and this is a related point, Crouch’s analysis is roughly framed by what he calls “two pardon paradoxes” (p.2). The first paradox is that while the pardon power is virtually unlimited, presidents are using it less and less. Crouch suggests that this paradox “is particularly perplexing considering how much modern presidents have expanded their powers in some other arenas” (p.2). Crouch explains this puzzle by arguing that while presidents generally “have something to gain” by pushing the limits of their other powers, they usually stand to gain little from using the pardon power and may well be politically hurt by using it, so they seldom do so: “Inactivity actually protects the president from making a mistake with the clemency power” (p.128). The second pardon paradox is that “despite presidents’ usual concern for political safety, each of our last three chief executives has made at least one very controversial clemency decision” (p.3). Crouch explains these anomalies by noting that each of the controversial clemency uses came when the president was “safe from punishment at the ballot box” (p.128). [*724]
Third, Crouch’s analysis contains several provocative claims. He identifies as one of the book’s main points the normative claim that the use of a pardon “as a political weapon” or for political expediency is wrong and an abuse of the power (p.4): pardons to bestow mercy on deserving individuals or to advance the public good are fine and legitimate, but pardons for personal political purposes are not. On this basis, Crouch argues that Ford’s pardon of Nixon was justified but that the controversial pardons by the last three presidents were not. Crouch agrees with Ford’s ostensible justification that the pardon of Nixon promoted the greater good and was necessary “to heal the wounds” of Watergate (p.67), and he notes that the American people eventually agreed, although it took a quarter century for that view to prevail (p.135). Crouch finds no such redeeming value in the more recent controversial cases. He faults all three presidents for acting after they were immune from electoral consequences, and he does not anticipate that they will be viewed more favorably as time passes.
The book’s broader normative claims are also worth noting. Crouch asserts that presidents have a positive duty to pardon: “a president should pardon regularly and vigorously” (p.24), in order to maintain the legitimacy of the power for future uses and also to provide political cover just in case one of the many pardons turns out to be controversial. And he contends that since courts have granted a wide leeway for pardons and Congress seems disinclined to contest pardons, it necessarily falls to the people to police the presidential use of pardons, so the public simply must be more vigilant (p.8). The twin desires for greater use of pardons and for greater public attention to them clearly call for a more central role for pardons in American political life, something that future pardon recipients would welcome, if not also future presidents and the public.
In sum, this book presents an accessible, wide-ranging discussion of an important aspect of presidential power. It will appeal to scholars of the American Presidency and American political history, and it is suitable for use in a variety of academic courses.
UNITED STATES v. WILSON, 32 U.S. 150 (1833).
EX PARTE GARLAND, 71 U.S. 333 (1866).
UNITED STATES v. PADELFORD, 76 U.S. 531 (1869).
UNITED STATES v. KLEIN, 80 U.S. 128 (1871).
THE LAURA, 114 U.S. 411 (1885).
BROWN v. WALKER, 161 U.S. 591 (1896).
BIDDLE v. PEROVICH, 274 U.S. 480 (1927).
SCHICK v. REED, 419 U.S. 256 (1974).
© Copyright 2009 by the author, Graham G. Dodds.
Labels: Vol. 19 No. 10