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August 30, 2017

Unpardonable Pardons

Pardons are for guilty people. According to the US Supreme Court in Burdick v. United States, accepting a presidential pardon "carries an imputation of guilt; acceptance a confession of it." If you disagree, as I do, with President Trump’s decision to pardon Sheriff Joe Arpaio, it is probably only small consolation to know that, by accepting his pardon, Arpaio technically acknowledged he was guilty. Some people, including newspaper editor George Burdick, the plaintiff in the Supreme Court case, have refused to accept a pardon.

The presidential pardon power was controversial even as it was written into the US Constitution. Anti-federalists recalled pardon’s abuse by the British Crown and royal governors. Alexander Hamilton argued that the pardon power might be needed to end rebellions. He was prescient; George Washington pardoned the leaders of the Whiskey Rebellion on his last day in office.

President Andrew Johnson pardoned many Confederate leaders after the Civil War. Apparently some of their statues have been unpardoned.

I was outraged when Ford pardoned Nixon (outrage was less common way back then). With hindsight I’m not so sure. That pardon let the country move forward. It may well have cost Ford any chance he had for reelection.

President George H. W. Bush pardoned six participants in the Iran Contra affair including former Defense Secretary Caspar W. Weinberger. Independent prosecutor Lawrence E. Walsh was outraged and said Bush might have been covering up his own complicity in the events that happened when Bush was Reagan’s Vice President. But the pardon ended the investigation.

As described in Wikipeida:

“…[President Bill]  Clinton commuted the sentences of 16 members of FALN, which is a Puerto Rican paramilitary organization that set off 120 bombs in the United States, mostly in New York City and Chicago.… The 16 were convicted of conspiracy and sedition and sentenced with terms ranging from 35 to 105 years in prison… Clinton offered clemency on the condition that the prisoners renounce violence, seeing as none of the 16 had been convicted of harming anyone and they had already served 19 years in prison. … The commutation was opposed by the U.S. Attorney's Office, the FBI, and the Federal Bureau of Prisons and was criticized by many, including former victims of FALN terrorist activities and the Fraternal Order of Police.[7] Hillary Clinton, then campaigning for her first term in the Senate, initially supported the commutation,[8] but later withdrew her support.[9]

“Congress condemned this action by President Clinton, with votes of 95–2 in the Senate and 311–41 in the House.[10][11] The U.S. House Committee on Government Reform held an investigation on the matter, but the Justice Department prevented FBI officials from testifying.[12] President Clinton cited executive privilege for his refusal to turn over some documents to Congress related to his decision to offer clemency to members of the FALN terrorist group.”

The power to commute sentences derives from the pardon power in the Constitution. Other Clinton pardons and commutations appear merely venal. They include:

  1. Fugitive financier Marc Rich whose ex-wife donated generously to both the Clinton Library and Hillary Clinton’s Senate campaign. Again from Wikipedia:

“According to Paul Volcker's independent investigation of Iraqi Oil-for-Food kickback schemes, Marc Rich was a middleman for several suspect Iraqi oil deals involving over 4 million barrels (640,000 m3) of oil.[26] Longtime Clinton supporters and Democratic leaders such as former President Jimmy Carter, James Carville and Terry McAuliffe, were all critical of the Clinton pardon. Carter said the pardons were "disgraceful."[27]

  1. Susan McDougal who had loyally served eighteen months in prison for refusing to testify about Clinton’s role in the Whitewater affair.
  2. Roger Clinton, the President’s brother, on drug charges.

President George W. Bush was blamed both for commuting the sentence of Scooter Libby, former chief of staff for VP Dick Cheney, and for not granting him a full pardon.

FALN leader Oscar López Rivera refused to renounce violence so was not included in Clinton’s commutation. However, President Barack Obama commuted his sentence without conditions. The Washington Post editorialized:

“FBI agents discovered dynamite, detonators and firearms at two residences occupied by Lopez Rivera. At trial, a cooperating witness from the FALN testified that Lopez Rivera personally trained him in bomb-making.

“So Lopez Rivera is neither a low-level offender nor a nonviolent one. Nor, crucially, is he repentant…

“Obama's offer this week came with no such requirement [renouncing violence]— in puzzling contrast not only to Clinton's policy in 1999, but also to White House statements that Chelsea Manning deserved clemency because she accepted responsibility and showed remorse.”

Some of us, including me, also disagreed with Manning’s commutation. You’ll remember that she made her publisher, WikiLeaks, famous - before they became infamous when they publishing purloined documents from the Democratic National Committee.

One bad pardon doesn’t excuse another. I still think Trump was wrong to pardon the sheriff because he is condoning vigilantism by law enforcement. The pardon of Manning condones unilateral declassification of secret material by anyone through whose hands it passes. Washington was probably right to pardon the Whiskey rebels and I think Andrew Johnson was right to pardon Confederates. Since pardons are for the guilty, a President walks a fine line between healing and promoting bad behavior when he or she exercises the pardon power.

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