SPEAKERS CONTENTS INSERTS
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71–180
2001
PRESIDENTIAL PARDON POWER
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
FEBRUARY 28, 2001
Serial No. 2
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
TODD R. SCHULTZ, Chief of Staff
PHILIP G. KIKO, General Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
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SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania,
Vice Chair
LAMAR S. SMITH, Texas
ASA HUTCHINSON, Arkansas
JERROLD NADLER, New York
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
February 28, 2001
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
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WITNESSES
Mr. Daniel T. Kobil, Professor of Law, Capital University Law School
Mr. Allan J. Lichtman, Professor of History, American University
Ms. Margaret Colgate Love, Pardon Attorney, U.S. Department of Justice
Mr. Alan Charles Raul, Associate Counsel to the President
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Mr. Daniel T. Kobil, Professor of Law, Capital University Law School: Prepared Statement
Mr. Allan J. Lichtman, Professor of History, American University: Prepared Statement
Ms. Margaret Colgate Love, Pardon Attorney, U.S. Department of Justice: Prepared Statement
Mr. Alan Charles Raul, Associate Counsel to the President: Prepared Statement
The Honorable Lamar S. Smith, Member, Committee on the Judiciary, U.S. House of Representatives
PRESIDENTIAL PARDON POWER
WEDNESDAY, FEBRUARY 28, 2001
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House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to call, at 11:05 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.
Mr. CHABOT. The Subcommittee will come to order. We convene today to examine the Presidential pardon power, which is found in Article 2, Section 2, Clause 1 of the United States Constitution, which I will now quote in relevant part: ''The President...shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.''
Recent events have caused debate and discussion over the use of the pardon power. Many here in Congress and across the country have suggested constitutional or legislative changes that would restrict a president's ability to issue pardons. So, today it is important for this Subcommittee to undertake a responsible review of the pardon power in a constitutional and historical context.
Since the executive pardoning power was firmly established in the common law—it had been formally recognized in England since the reign of Henry VIII in 1635—the Framers' adoption of this provision was occasioned with little debate. But there was some discussion about the scope of the powers. For example, one delegate suggested that the President only be given the right to pardon a person with the consent of the Senate. Another delegate suggested that the power not be available in cases of treason, and following the Constitutional Convention, Alexander Hamilton took the lead in successfully defending the pardon power. Both President Abraham Lincoln and President Andrew Johnson used the pardon power to issue amnesties to persons who had fought against the Union during the Civil War.
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Early decisions of the United States Supreme Court concerning the pardon power did not view the power as something to be used for the public welfare. Rather, these decisions looked to the common law in determining that a pardon is a private ''act of grace'' bestowed by the President—going so far as to hold in one case that a pardon must be accepted by its recipient in order to be valid. The Court, however, expanded the law relating to the pardon power in 1927 with its decision in Biddle v. Perovich. In Biddle, the Court upheld a commutation of sentence by the President from death to one of life imprisonment, against the wishes of the prisoner. In doing so, the Court determined that a commutation, and perhaps a pardon as well, is for the public welfare and is not a ''private act of grace from an individual happening to possess power.''
Among the areas the Subcommittee will explore today is to what extent Presidents have, and whether Presidents should, adhere to the principle that the pardon power should be used for the public welfare and should not be wielded as if a pardon was a private act of grace from an individual happening to possess power.
For over a hundred years the President has been assisted in pardon matters by the Attorney General and the Department of Justice. The Justice Department has promulgated regulations to guide its work in this area, but these regulations are merely advisory in nature—and therefore do not bind the President—because the Constitution grants the President an unfettered right, with the notable exception of impeachment cases, to grant pardons and other acts of clemency. I look forward to hearing from our distinguished panel of witnesses as to whether congressional action is needed to provide a check on this largely unfettered right. If congressional action is needed, in what form should it take? Oversight investigations and hearings? Statutes? A constitutional amendment?
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The Subcommittee will also explore how the Justice Department regulations operate on a day-to-day basis, whether the current regulations should be revised in any way, and what consequences flow from a President's lack of adherence to the regulations. In addition, as the sponsor during the last Congress of a victims' rights amendment to the Constitution, I am especially interested in a relatively new regulation that purports to include victims in the pardon application process. I would like to know the extent to which victims were included in the process before this new regulation took effect and whether the regulation will increase the likelihood that victims are included in the process. Because today's hearing is likely to reveal actions taken and decisions made by persons close to several former Presidents, Members should be mindful of the doctrine of executive privilege. Although the circumstances under which one may invoke the privilege is subject to debate, I asked that, for purposes of this hearing, Members refrain from soliciting information that would require a witness to disclose the content of a communication with a President. If any witness believes that he or she cannot fully answer a question without disclosing such information, the witness should answer the question to the extent his or her answer will not contain the content of a communication with the President and clearly state that the executive privilege precludes the witness from answering more fully.
Let me again emphasize that the purpose of this hearing is not to scrutinize the pardons and commutations granted by President Clinton on January 20th of this year, though I find such scrutiny to be well within the appropriate oversight function of Congress and I applaud the work of those committees that are performing that function. This hearing is meant to serve a different purpose. The purpose of this hearing is to, number one, explore the constitutional basis for, number two, explore the evolution in the law of, and number three, explore the history of the implementation of the President's Article 2 power ''to grant Reprieves and Pardons for Offenses against the United States.'' The Subcommittee undertakes this endeavor with an eye toward the future and the hope that we will become better informed and, therefore, more capable of determining what, if any, course of action should be taken by Congress.
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That is my statement. I will now turn to the Ranking Member of this Subcommittee, Mr. Nadler.
Mr. NADLER. Thank you very much, Mr. Chairman. I want to congratulate you first on assuming the chairmanship of this Subcommittee and I look forward to working with you in the Committee's job of safeguarding the constitutional rights and the civil liberties of all Americans. Today we begin that effort by examining the President's power to grant pardons under Article 2, Section 2, Clause 1 of the Constitution.
There is little disagreement among legal scholars that this power is unrestricted as applied to offenses against the United States, excluding impeachment. There seems to be little disagreement among scholars that Congress has no power whatsoever to put any restrictions or conditions or guidelines on the exercise of this power, other than by starting a constitutional amendment.
This has been the case since the adoption of the Constitution and it is built on the pardon power going back to the English law roots of our legal system. The attention which the pardon power has attracted in recent weeks, as well as in the cases of controversial pardons granted by prior Presidents, stems not so much from any contention that the President has exceeded his power, which no one seems to suggest, but from suggestions that he made improper or inappropriate use of that power.
I suppose most pardons are likely to arouse some controversy, but the issue some of our colleagues have raised recently is whether we should rethink the decision of the Constitutional Convention to reject any check on this power by another branch of government. The Constitutional Convention rejected suggestions that Congress, by two-thirds, a majority vote, concur in or have the veto power over pardons. Alexander Hamilton observed in Federalist No. 74 that the pardon power is necessary to ensure the fair and merciful treatment of citizens and to afford an opportunity to rectify injustices or undo harshness that comes out of the judicial system.
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Clearly pardons made by a lame-duck President who no longer faces the judgment of the voters, especially where there may be a suggestion of personal interest or political interest, merits attention not only by the court of public opinion, but also by thoughtful policymakers. The pardons handed down by President Bush to his Iran-Contra co-conspirators or by President Clinton to political allies have naturally aroused concern.
I appreciate the chair's assurance that this Subcommittee will confine itself to the pertinent constitutional and public policy issues surrounding these important questions. In this fashion the Subcommittee can perform a valuable public service for the American people. I look forward to working with you, Mr. Chairman, on this basis in a cooperative and constructive manner.
I thank you and I yield back.
Mr. CHABOT. Thank you very much, Mr. Nadler. I will now turn to Mr. Bachus for an opening statement.
Mr. BACHUS. Thank you. I look forward to hearing from the witnesses and I want to ask you some questions about specific fact situations, not specific pardons, as to what a pardon does do and what it does not do, but I will wait for the questions and look forward to hearing your introductory remarks.
Mr. CHABOT. Thank you very much.
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Mr. Frank?
Mr. FRANK. Thank you, Mr. Chairman. Earlier this week I introduced a constitutional amendment in response to the pardon issue. It strikes me that the pardons that have most angered people have been the ones issued by Presidents at that moment when they were free for the rest of their lives from any possible electoral sanction.
I have not wanted to see a diminution of the pardon power, per se. I think it is an essential part of any criminal justice system to have this kind of safety valve for two reasons. First of all, we make mistakes, and while you would hope that mistakes could be corrected through the judicial system, that is not always going to be the case and it also can be a longer process. So I think it is essential that we recognize the fallibility of human affairs, to have some pardon process.
Secondly, there are people who are genuinely rehabilitated. There are people who, having done something wrong at some point, do something better. I would give an example of pardons that President Clinton issued for which I lobbied, and many other Democratic Members of this Committee. In 1994, we changed the drug law to reduce the likelihood that people who were guilty of what I would consider low-level drug possession offenses would have very long sentences.
Over the objections of some of us, we failed to allow people in that category who had already been sentenced to apply to be treated as if they have been convicted under the new rules. Bill Clinton pardoned some people who were in prison for excessive periods and who, if they had been recently sentenced, would have had shorter sentences. I think you need that sort of thing, both, as I said, as a safety valve for error and for rehabilitation.
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So that when people propose some kind of substantial diminution of the pardon power, I object to it. I must say the proposal that I think came from Senator Specter, that pardons be subjected to override by a two-thirds vote of both houses of Congress, in addition to which objectionable character, I think further politicizing the pardon process, was the last thing we needed.
I must say, though, people who were for term limits might have liked that, because I cannot imagine a better way to clear this place out than to tell me I am going to have to spend a couple of months every year as a super-appellate judge going over 400 pardons or something, and I am out of here. Now, maybe that is an attraction to some people.
But what I then tried to do was to come up with an approach that would diminish the likelihood of abuse of the pardoning power without diminishing the pardoning power itself, and looking, as I said, at the controversial pardons, President Bush's, of the Iran-Contra people, and President Clinton's, of a whole range of people who should not have been pardoned, it seemed to me the way to do that was to say that no pardons may be issued between October 1st of the election year and January 21st of the year following.
I made an exception in the cases of death penalties because you would not want someone to be unable to postpone a death sentence, and I allow for a postponement of that until the next presidency. Nothing is going to be a perfect solution, but I do think even a President not himself running—George Bush was running for reelection in 1992. Bill Clinton, while not running, had an interest in the Democrats winning. I do not believe that the objectionable pardons that were issued in the Clinton case would have all been issued if they had to have been done by October 1st. I think it is likely that the Bush ones may not have been issued.
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I give credit to Gerald Ford. Gerald Ford, in 1974 as President, with a kind of integrity which marked his presidency, issued a pardon he knew to be unpopular, and he did it, I believe, in August, well before an upcoming election, and his party suffered in that election. But that is the process we ought to subject Presidents to. If you feel strongly that justice is best done by a pardon, do it at a period when the electorate can render a judgment. Do not send it to the individual Members of Congress to play Judge Judy. Let's have it go to the electorate.
So the amendment I have offered would leave the pardoning power as a safety valve and as a way of recognizing people having rehabilitated themselves. Totally unhindered for 44 of the 48 months of a presidency, it could be issued without any restriction. But it would say that you cannot do it in that narrow window when you are not going to be subject to electoral sanction.
I picked October 1st because I think—and I also put in a section that says the pardons have to be announced publicly. Otherwise you would have had some Presidents issuing pardons the way the Pope makes some Cardinals, in petto, secretly and then releasing it later. So the amendment would say that the pardon has to be done before October 1st or after January 21st in that election year period. It has to be done publicly. I am confident then that the media would find this out.
I guess one of my side points here is that having the pardons issued by October 1st would find a constructive outlet for the scandal obsession of our friends in the media. I would like to try and put them to some good use for once, and I think we could count on them to dig out any of those facts.
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So I hope, Mr. Chairman, that when we get beyond the oversight phase into legislative consideration, we will have a chance to talk seriously about that amendment.
Mr. CHABOT. Thank you very much, Mr. Frank. The chair now recognizes Mr. Smith for an opening statement.
Mr. SMITH. Thank you, Mr. Chairman. Mr. Chairman, properly exercised, the pardon power distributes justice. Properly exercised, the pardon power restores hope. It returns the presumption of innocence to those unfairly thought guilty. Properly exercised, the pardon acknowledges that our system of judgment and penalty occasionally is flawed. It gives the accused and convicted one last opportunity to have the slate wiped clean, to begin anew.
Improperly exercised, the pardon is a travesty of justice, an act born not of mercy, but of tyranny. As the Constitutional Convention developed the blueprints for our government late in the summer of 1787, their attention turned to the executive's power to pardon. Governor Edmund Randolph of Virginia suggested limiting the President's pardoning powers. The motion was rejected. The founders decided that if a President abuses his power, he would be removed from office either by impeachment or failure to win reelection.
The founders did not, of course, anticipate the 22nd Amendment, limiting the President's service to two terms. The founders failed to perceive a leader freed of the fetters of public accountability and personal morality. While the 22nd Amendment has succeeded in preventing despotism and tyranny, in this limited circumstances it has sheltered the President from accountability.
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According to Alexander Hamilton, quote, ''Power of pardon in the President has been only contested in relation to the crime of treason.'' The delegates to the Constitutional Convention believed treason was a crime leveled at the immediate being of a society, an offense meant to strike at the heart of America's institutions and values. Article 3 of the Constitution includes giving aid and comfort to the enemy in its definition of treason.
Mr. Chairman, in the midst of the Iran hostage crisis, putting profit before patriotism, one person who was recently pardoned traded oil with Iran. His 1983 indictment for trading with the enemy stands on the cusp of treason. His consequent pardon stands on the cusp of corruption. Former President Clinton is not the first to cause controversy through pardons. He is not the first to issue pardons outside the prescribed channels. I understand that former President Reagan issued two such pardons to former FBI agents and that former President Bush issued six to public servants involved in the Iran-Contra affair, but there was never any suggestion that money influenced their actions.
I hope our witnesses can shed light on the extent to which President Clinton's actions were consistent with the original intent and historical exercise of the pardon power. Alexander Hamilton said that without the Presidential power to pardon, quote, ''Justice would wear a countenance too cruel.'' Today's hearing should show that the pardon power is noble in intent and can be fair and just in practice. Clemency, like all matters of justice, should be open to the influence of facts and fairness and closed to the influence of wealth and privilege.
The President must guard the gate between punishment and reprieve with vigilance. Mr. Chairman, after today's hearing, I hope all will agree that pardons should be recommended by DOJ, not FOB.
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Thank you, Mr. Chairman, and I yield back.
Mr. CHABOT. Thank you very much, Mr. Smith. The chair now recognizes Mr. Scott for an opening statement.
Mr. SCOTT. Thank you, Mr. Chairman, for the opportunity to speak before this hearing on Presidential pardon power. Although the Constitution gives the President an exclusive and unrestricted right to grant pardons, the Congress does have the authority to examine the exercise of that power as part of its general oversight committee. However, it is not clear to me why this issue was important enough to be chosen as the very first issue that this Subcommittee addressed, and that is because notwithstanding all the hoopla over the recent Presidential pardons and the attention given to those pardons by numerous congressional subcommittees, under the Constitution, Congress has no authority to modify, rescind or diminish any of those pardons.
So also I think it is fair to say that we are not going to amend the Constitution. So the question is why are we spending the time right now? Mr. Chairman, there is one issue that I think we should be addressing, and that is the constitutional implications in the President's faith-based initiatives, particularly the legislative initiative, Charitable Choice. That legislative initiative has serious constitutional implications, directly funding religious organizations who can proselytize during the Federal program and discriminate based on religion during the federal—with the Federal funds. That issue has constitutional implications and it is one that we ought to be addressing, because funds are now being spent under welfare reform, where charitable choice already exists.
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There are proposals before the Congress to expand charitable choice. That is the kind of constitutional issue that we ought to be addressing.
Mr. CHABOT. Would the gentleman yield?
Mr. SCOTT. I will yield.
Mr. CHABOT. I appreciate the gentleman raising that issue. That is something—we do have an intention to hold a hearing in the near future, and relative to the issue at hand today, obviously it is a timely issue. A Member of the minority side has offered a constitutional amendment and every constitutional amendment comes through this Subcommittee, so we thought it was an appropriate thing for us to do and continue to feel that way. Thank you for yielding.
Mr. SCOTT. Well, reclaiming my time and thank you, Mr. Chairman. I am delighted to hear that we will have a hearing, because although the issue has been alive and well for the last several years, we have not had a hearing on Charitable Choice and its severe First Amendment implications. But since we are going to do Presidential pardons, although we are not going to actually do anything about it, I would just ask that we give all Presidential pardons from all Presidents the similar scrutiny, so that if you are going to criticize the pardons of one President, let's criticize the pardons of other Presidents. I yield back the balance of my time.
Mr. CHABOT. I thank the gentleman, and the gentleman from Arkansas, Mr. Hutchinson, is recognized for an opening statement.
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Mr. HUTCHINSON. I thank the Chairman and I appreciate you conducting this hearing in the manner in which it is being conducted, and I want to thank the panelists for being here. I wanted to pose some comments and questions prior to your testimony, and perhaps they can be addressed. First of all, I would agree with some of the other statements that the pardon power is a very important tool to establish justice, which, of course, is one of the purposes of our great government under the preamble to our Constitution.
So I think the pardon power is important. It tempers cruel justice sometimes. It is something that is very, very important historically and certainly currently. Secondly, I would just raise some questions I hope you all will address, in Schick v. Reid, the Supreme Court talked about that the President may attach conditions. That is just an interesting concept to me, particularly when you think about all the recent pardons that have drawn controversy and all of the conditions that could have been imposed. If I am understanding that correctly, I would like to have your comments on that.
Thirdly, we as Members of Congress get questions all the time about pardons, people coming to us on what has to be done. Of course, 28 CFR, the Code of Federal Regulations, provide that a pardon application should not be submitted until 5 years after release. What should we tell folks? Should we tell them just disregard the Code of Federal Regulations, that they have no applicability today? Or do we need to change it? What should we tell people in a practical way about pardons, because obviously, after what we have recently seen, the pardons are going to be coming out of the woodwork, because they see—or maybe they will wait till the end. I think it is certainly on people's minds.
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Fourthly, I happened to be a Federal prosecutor on one of the cases involving the recent pardons. I was actually the Federal prosecutor in court, and I noted in the comments of the Chairman, in the preparatory materials, that historically the prosecutor has been notified of a pending pardon application or the consideration of a pardon. Should that be codified? Should it be adopted in the Code of Federal Regulations, because I see that it is not in there?
Then finally, my good friend from Massachusetts, Mr. Frank, has talked about a constitutional amendment that would provide some protection for the exercise of the pardon power prior to the termination of the President's term or during that close window. Should there be a statutory framework for it? Can Congress have legislative authority not to curtail the President's pardon power, but set up some procedures? Would that be seen as constitutional? Is there a statutory framework that perhaps requires notification of victims, requires some notice to Congress, or is there any limitation that we can do that would not constitutionally infringe upon that power of the President?
So I know that these scholars will be addressing some of these questions. I look forward to their experience and comments and answers, and I thank the chair.
Mr. CHABOT. Thank you, Mr. Hutchinson. The chair now recognizes the gentleman from North Carolina, Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I appreciate the Chairman having this hearing, although I share Mr. Scott's concerns about the timing of the hearing. I think this is an important issue, and we should be having a hearing on it at some point. Although I guess my cutting-to-the-chase reaction is this, too, shall pass. The American people, I believe, have kind of gone on beyond this and are focusing on their daily lives, and I suspect that in the final analysis we are not going to do anything to amend the Constitution.
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We are going to find that the President's power is absolute, and despite the fact that I have concerns about pardons, some of the pardons issued in this case and some of the pardons issued by prior Presidents, probably the quicker I can make this opening statement and get this hearing over the quicker it will pass. So, with that frame of mind, I really think we shed light on this.
We make it possibly a more thoughtful process for future Presidents when they approach these issues, in some measure that makes this a cathartic process, I suppose. But I am not sure that—although I am going to try to keep an open mind, I am not sure that I am willing to support any constitutional amendment in this area. That is probably consistent with my philosophy on most things relating to amending the Constitution. So I will try to be open-minded, and I have tried to be brief, and maybe the best thing I can do is be brief so that we can move this process on and get on to the really important business of the country, that we probably will have some impact on in the future. I yield back.
Mr. CHABOT. I thank the gentleman for being both brief and open-minded. We appreciate that very much.
The gentleman from Virginia, Mr. Goodlatte, who is not actually a Member of this Committee, but without objection we are going to recognize him for an opening statement, if he would like to give one.
Mr. GOODLATTE. Mr. Chairman, I thank you as a Member of the full Judiciary Committee, but not a Member of the Subcommittee, for your allowing me to participate in this hearing on an issue that I am very interested in. I will be brief, but I would like to say that I concur with those who have said that the pardon power of the President of the United States is a very important power.
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Many executives have this power for the purpose of accomplishing justice or mercy as a last resort, where fairness simply has not taken hold in other aspects of our judicial process. However, I believe the immediate past President, Mr. Clinton, has abused this power and has not used it for the purposes that I and others here today have described.
I think it is important that we take this opportunity to review what can be done. I agree with those who say that there is probably nothing that Congress can do to overturn those pardons. I would be interested in hearing from the panel what recourse law-enforcement and others might have if the power was abused in a criminal fashion. If there is indeed proof of a quid pro quo, I presume everybody involved could be prosecuted under our laws, but I would like to hear some comments on that.
I am also interested in the constitutional amendments proposed by a number of people, including the gentleman from Massachusetts, who would impose a time limitation on the process and the proposal of Senator Specter, who would provide for some kind of an override on the part of the Congress, of a pardon where the Congress felt, by a substantial majority, presumably two-thirds majority, that the President had abused the power, that it could be repealed.
However, I also agree with those who say that a constitutional amendment is unlikely to take place, and that leaves me with what I think we ought to focus a good deal of our attention on, and I hope the panel members will, and that is what can we do under our other legislative authority in this area? It strikes me that we possibly can do some things. Some constitutional law professors have suggested to me that under the necessary and proper clause of the Constitution, which provides that to make all laws for the carrying into execution, all other powers vested by this Constitution in the government of the United States or in any officer thereof would allow us to take legislative action that could regulate, could codify, if you will, some of the procedures that the President is supposed to follow that have been established by past Presidents, which apparently were not followed by President Clinton in issuing his pardons, in terms of consulting with prosecutors, in terms of making known his intent to take the action and so on; things that could accomplish some of the same goals mentioned by the gentleman from Massachusetts with his amendment, making it more transparent, exposing it to the light of day, could possibly be accomplished without a constitutional amendment.
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I would like to hear your opinion on whether that indeed is possible. Other constitutional scholars have said that this may be possible, but you are limited in your remedies. If the President does not follow procedure, what can you do? For example, can you do anything other than impeach him, which obviously, late in a President's term, is not an effective remedy, and can you take other actions against those who assist the President in carrying out the pardons that violates the procedures established by the Congress? Can they be subjected to criminal prosecution for their failure to follow these statutory remedies?
These are the things, Mr. Chairman, I would like to hear from this panel. Can we do something that is likely to achieve some measure of legislative support, short of what it takes to pass a constitutional amendment?
Thank you, Mr. Chairman.
Mr. CHABOT. Thank you very much for your opening statement and thanks to all the Members for their statements. I will now move to the panel here this morning. Our first witness this morning is Daniel T. Kobil, professor of law at Capital University Law School in Columbus, Ohio—we welcome you here today—where he has taught in the areas of constitutional law and commercial law since 1987.
Professor Kobil served as a law clerk to Judge Albert J. Engel of the United States Court of Appeals for the Sixth Circuit before taking a position with the law firm of Baker and Hostettler, where he developed a litigation and appellate practice. Since entering the teaching profession, Professor Kobil has researched and published extensively on the subject of clemency, particularly as it relates to the death penalty. Some of his articles which have been cited by various courts, including the United States Supreme Court, are The Quality of Mercy Strained: Wresting the Pardoning Power from the King, which was published by the Texas Law Review, and Due Process in Death Penalty Commutations: Life, Liberty and Pursuit of Clemency, which was published by the University of Richmond Law Review.
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Our next witness will be Allan J. Lichtman, professor of history and chair of the department of history at American University in Washington, D.C. Professor Lichtman specializes in courses in quantitative methods, American political history, and late 19th-to-20th-century history. His books include, among others, Prejudice and Old Politics: the Presidential Election of 1928, and The Keys to the White House. Professor Lichtman is also the editor of the Lexington Books series, Studies in Modern American History, and a columnist for the Montgomery Gazette.
Our third witness is Margaret Colgate Love, whose practice involves post-conviction matters, including executive clemency, as well as government ethics and professional responsibility. From 1988 to 1989, she served as Deputy Associate Attorney General at the United States Department of Justice. From 1989 to 1990, Ms. Love served as Associate Deputy Attorney General, with oversight responsibility for the Office of the Pardon Attorney, among other things. Then, from 1990 to 1997, Ms. Love was United States Pardon Attorney, where she had overall responsibility for the operation and management of the Justice Department's executive clemency program. As Pardon Attorney, Ms. Love supervised a 15-person staff that processed petitions for executive clemency, prepared reports and recommendations to the President, and developed and implemented the Justice Department's clemency policy.
Our final witness is Alan Charles Raul, a partner in the law firm of Sidley & Austin in Washington, D.C. Mr. Raul's practice involves, among other things, litigation and business counseling in connection with Federal Government regulation, as well as the representation of clients on E-Commerce or Cyber law matters. Mr. Raul began his legal career as a law clerk for Judge Malcolm R. Wilkey of the United States Court of Appeals for the District of Columbia Circuit. From 1986 through 1988, he served in the White House as Associate Counsel to the President. Mr. Raul then served as general counsel for the Office of Management and Budget in the Executive Office of the President from 1988 to 1989, and as general counsel for the U.S. Department of Agriculture from 1989 to 1993.
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We have a vote. I will recess. One of our lights is burned out up there apparently. So we are not actually disturbed, other than by the noise.
We thank you all for coming and appearing here this morning. We would like to ask that you please summarize your testimony in 5 minutes or less, and without objection, your written statement will be made a part of the permanent hearing record. We do have a light system which will be coming on here shortly.
Mr. NADLER. Mr. Chairman?
Mr. CHABOT. Yes?
Mr. NADLER. Mr. Chairman, with the indulgence of the chair, I would like to extend a special welcome on my own behalf to Professor Lichtman, who was a very distinguished professor, as we all know, and who completely rearranged the department's schedule on short notice so that he could be with us here this morning. I remember he was a particularly brilliant student in high school a few years back in New York.
Mr. CHABOT. Well, we thank the gentleman from New York for making that statement and acknowledging Mr. Lichtman. We appreciate that. As I mentioned, we do have a lighting system here. We used to have much larger lights. It was a lot easier to see them, the red and yellow and green lights, and, of course, the yellow light means that you are supposed to wrap up, you have 1 minute remaining. We will not slam you down in 5 minutes, but we would appreciate you wrapping up in 5 minutes if at all possible so we will have time for questions, et cetera. So we will begin with Professor Kobil, and again we appreciate you being here this morning.
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STATEMENT OF DANIEL T. KOBIL
Mr. KOBIL. Thank you, Mr. Chairman and Members of the Subcommittee. I had been asked to testify concerning the history, judicial interpretation and constitutional scope of the clemency power. My written testimony goes into some detail regarding these matters and I hope the Committee will feel free to ask me regarding issues raised there. However, in my short time today, I would like to make four basic points regarding the clemency power, a couple of which have been touched on already in the statements of the representatives.
The Framers and Ratifiers considered various proposals to limit the clemency power and specifically rejected every one, save the limit on cases of impeachment. Moreover, in almost every case in which the Supreme Court has considered the clemency power, it has consistently refused to allow inroads into the President's authority by Congress or the courts.
Third, the clemency power, thus broadly construed, has played a very important role in both our history and our constitutional scheme for many of the reasons already mentioned. Finally, it is my belief that the present clemency controversy threatens our constitutional scheme potentially in a very different way than what has been suggested, not as Representative Hutchinson suggested, that it will open the doors to a great spate of clemency, but that, in fact, I believe that the President and perhaps members of his administration will be fearful of using the clemency power in deserving cases, and that it might dry up entirely.
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I will not recount the entire history of the clemency power being adopted by the Ratifiers and Framers. However I will say that I do not believe the Framers of the Constitution were naive about human nature. They recognized that enlightened statesman would not always be at the helm. They, in fact, posited that perhaps if there were a treason case involved, the President might be involved and that the traitors might be persons in cahoots with him.
However, they consciously chose to vest the unfettered clemency power in the President knowing that it is possible that it be abused. They rejected efforts to prohibit pardons before conviction. They voted down the proposal to remove cases of treason from the pardoning power. They also rejected attempts to have the power shared by Congress. The only limit that they recognized, that clemency not be used in cases of impeachment, which I believe is consistent with the complementary nature of pardon and impeachment as checks and balances that Congress and the President have over each other.
As for judicial interpretation of the clemency power, as I mentioned, the Court has been very broad in its interpretation. Even though the Constitution only speaks of pardons and reprieves, the court has recognized that the clemency power also includes amnesty, commutation, as well as the remission of fines and forfeitures, several forms of clemency recognized under the common law.
It can be granted even if the recipient does not want clemency, because it is exercised for the public welfare. Moreover, in response to Mr. Hutchinson, the Supreme Court has clearly said that the power cannot be modified, abridged or diminished by Congress. I think that it would be very difficult to enact any laws which would bind the President in the exercise of his power, and I think that is consistent with what the framers saw as the checks and balance nature of the clemency power.
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The Subcommittee has already mentioned a number of the benefits that clemency has played in our national history. I think the most important ones have been exercises following the Civil War, to bind together the country, by Presidents Johnson and Lincoln; President Carter, using the amnesty grant to former draft resistors, to heal some of the wounds of the Vietnam War.
I think that the other thing that clemency does is it creates a scheme of sensible exceptions to general rules that, in the end, result in the broader purposes of laws being carried out. Finally, it is a vehicle for mercy for thousands, perhaps the only officially sanctioned vehicle for mercy for persons who have paid their debts to society and seek some sort of official acknowledgement of their rehabilitation and the fact that they have repaid their debts.
Can I keep talking?
Mr. CHABOT. You can keep talking. We have reached the 5 minutes, but if you would not mind wrapping up——
Mr. KOBIL. What I did want to say is that the clemency power has been in decline for a number of years, I believe, because Presidents have been reluctant to use it. The danger that this controversy raises is that it may result in the power not being used by future Presidents in deserving cases. Ms. Love has documented this decline in the use of the power, and under these circumstances, I would say to the Committee that I believe that amending the Constitution is both unnecessary and unwise, even if it might happen.
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The reason for that, I would say Senator Specter's proposed constitutional amendment, providing a veto power to the President, would hopelessly politicize the process and would also effectively abolish clemency if proposed pardons were to be debated on the floor of the House and Senate. Representative Frank's proposal, although I think it is better in that it would not completely eliminate this vital power, I still am not convinced that it is needed at this time because the system has, by and large, I think, worked, and we have not seen a systemic problem with clemency that requires a constitutional amendment.
In conclusion, I would just say that because no system of justice is perfect, there will always be a need for clemency to alleviate its inevitable——
Mr. CHABOT. If the gentleman would yield for just one moment. The gentlemen can continue, although if you could wrap it up——
Mr. KOBIL. This is my wrap up, thanks. In retaining this element of humanity, I believe that the framers and we who follow them, necessarily have retained the possibility of human error. I would like to, if we have time, explore some of the questions, including the one pertaining to conditions being attached to grants of clemency.
Thank you.
[The prepared statement of Mr. Kobil follows:]
PREPARED STATEMENT OF PROFESSOR DANIEL T. KOBIL, PROFESSOR OF LAW, CAPITAL UNIVERSITY LAW SCHOOL
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Thank you Mr. Chairman and members of the Subcommittee. My name is Daniel T. Kobil. I am a Professor of Law at Capital University Law School in Columbus, Ohio, where I have taught constitutional law for the past fifteen years. Since entering teaching, my principal area of scholarly interest has been executive clemency and I have written a number of articles on this subject. See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Texas Law Review 569 (1991); Daniel T. Kobil, Do the Paperwork or Die: Clemency, Ohio Style?, 52 Ohio State Law Journal 655 (1991); Daniel T. Kobil, Due Process in Death Penalty Commutations: Life, Liberty, and the Pursuit of Clemency, 27 University of Richmond Law Review (201); Daniel T. Kobil, The Evolving Role of Clemency in Capital Cases, Chapter 20 in America's Experiment with Capital Punishment (Acker, Bohm, & Lanier, ed.1998). I have represented individuals seeking clemency, and have also served as counsel of record for the American Civil Liberties Union as amicus curiae in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998), a case decided by the United Supreme Court concerning clemency and Fourteenth Amendment guarantees of due process. It is therefore a pleasure to be with you today to discuss the history, scope, and proper role of clemency in our constitutional system.
Article II, section 2, of the Constitution succinctly provides 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 power to grant reprieves and pardons has been broadly construed by the Supreme Court as authorizing the issuance of all forms of clemency, including amnesty, commutation, and the remission of fines and forfeitures, in addition to pardon and reprieve. Although it is common to refer to any executive act that ameliorates punishment as an exercise of the ''pardoning power,'' I believe that the term ''clemency'' more accurately describes the plenary constitutional authority of the President to remit punishment using the distinct vehicles of pardons, amnesties, commutations, reprieves, and remissions of fines. Generally, in this testimony I will use ''clemency'' as an umbrella term referring to all exercises of the power of the President under Article II to diminish punishment.
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I have been asked by the Subcommittee to address the history of the clemency power, particularly the intent of the framers in adopting the provision, which has survived in its current form unchanged since it became part of our Constitution in 1787. I will also address the manner in which the judiciary has interpreted the President's clemency authority, as well as the history of its use by various presidents. Finally, I will consider the appropriate and necessary role that I believe clemency ought to continue to play in our constitutional system.
Although the controversy currently surrounding various grants of clemency issued by former President Clinton at the end of his term cannot be ignored, I believe that the much of the ensuing inflammatory rhetoric has worked against constructive debate about appropriate uses of the clemency power. Thus, I do not intend to comment directly on the propriety of these remissions of punishment. It is my hope, instead, that by looking at the clemency power in the broader context of our constitutional system, this hearing will foster greater understanding of the importance of clemency, and serve as a catalyst for a reasoned, national discussion on its proper role.
I. HISTORY OF THE PRESIDENT'S CLEMENCY AUTHORITY
A. The Drafting of the Constitutional Provision Governing Reprieves and Pardons
During the constitutional convention in Philadelphia, Alexander Hamilton initially proposed that the President ''have the power of pardoning all offences except Treason; which he shall not pardon without the approbation or rejection of the Senate.'' The Report of the Committee of Detail retained the President as the sole repository of the power to grant reprieves and pardons, but instead of excepting treason, the report provided that presidential pardon ''shall not be pleadable in Bar of an Impeachment.'' This language was shortened to its present form—''except in cases of impeachment'' without reported debate.
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The few recorded discussions at the Convention concerning the clemency power pertained to unsuccessful attempts to restrict the scope of the President's power. Mr. Sherman proposed that the power ''to grant reprieves & pardons'' be amended so as to read ''to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate.'' The motion was voted down eight to one. 2 The Records of the Federal Convention of 1787, at 419 (M. Farrand ed. 1911) [hereinafter ''M. Farrand at———''].
Similarly, some of the framers voiced concerns that vesting in the President an unlimited power to pardon in cases of treason was too dangerous. Edmund Randolph argued that ''[t]he prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.'' 2 M. Farrand at 626. While a number of the delegates, including James Madison, agreed that the power to pardon treason should not be vested in the President alone, the framers ultimately were unwilling to allow the Senate to share the power to pardon. The debate on Mr. Randolph's motion (later withdrawn) to ''except cases of treason'' from the clemency power is instructive on the framer's views of why the power should be vested in the President alone, rather than the legislature:
Col: Mason supported [Mr. Randolph's] motion.
Mr Govr Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.
Mr Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.
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Mr. King thought it would be inconsistent with the Constitutional separation of the Executive & Legislative powers to let the prerogative be exercised by the latter—A Legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachusetts, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in Acts of Pardon.
Mr. Madison admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an association of the Senate as a Council of advice, with the President.
Mr. Randolph could not admit the Senate into a share of the Power. The great danger to liberty lay in a combination between the President & that body——
Col: Mason. The Senate has already too much power—There can be no danger of too much lenity in legislative pardons, as the Senate must concur, & the President moreover can require two-thirds of both Houses.
2 M. Farrand at 626–27.
Ultimately, the only limit on the clemency power admitted by the framers was that it could not be used in cases of impeachment. In my view, the framer's retention of impeachment as the sole textual limit on the clemency power is consistent with the complementary nature of impeachment and pardon as integral parts of the Constitution's system of checks and balances. If the President could pardon in cases of impeachment, this important check which Congress can exercise on the Executive and the Judiciary would be significantly weakened. Likewise, if the President had been required to share the clemency power with the Congress, the efficacy of clemency as an essential counterbalance on the law-making and law-interpreting branches, would be diminished.
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B. The Ratification Debate in the States regarding the Constitutional Provision Governing Reprieves and Pardons
Any consideration of the intent of the ''framers'' of the Constitution ought to include, not only the views of the delegates to the Philadelphia convention, but also the substance of the debates over ratification of the Constitution that occurred in the states. After the Philadelphia convention, some critics of the proposed constitution voiced objections that the President's unrestrained power to pardon might lend itself to abuse, particularly in cases of treason.
Alexander Hamilton responded forcefully that the clemency power is both necessary, and is properly vested in the President alone:
Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. . . . As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for mitigation of the rigors of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance.
The Federalist No. 74, at 447–48 (A. Hamilton) (C. Rossiter ed. 1961)[hereinafter, ''The Federalist No. 74, at———''].
In defending the proposed Constitution's broad grant of authority to the President, the two most often-cited defenders of the clemency power, Hamilton and James Iredell, pursued nearly identical lines of reasoning. First, both emphasized the justice-enhancing aspects of clemency, meaning that the power is necessary to assure that people are treated fairly. Hamilton argued that the ''benign prerogative of pardoning'' should be as little fettered as possible so that exceptions in favor of ''unfortunate guilt'' could be made; otherwise, ''justice would wear a countenance too sanguinary and cruel.'' The Federalist No. 74, at 447. Mr. Iredell was even more explicit:
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[T]here may be many instances where, though a man offends against the letter of the law, yet peculiar circumstances in his case may entitle him to mercy. It is impossible for any general law to foresee and provide for all possible cases that may arise; and therefore an inflexible adherence to it, in every instance, might frequently be the cause of very great injustice. For this reason, such a power ought to exist somewhere; and where could it be more properly vested, than in a man who had received such strong proofs of his possessing the highest confidence of the people?
Address by James Iredell, North Carolina Ratifying Convention (July 28, 1788) [hereinafter Iredell Address], reprinted in 4 The Founders' Constitution 17–18 (P. Kurland & R. Lerner ed. 1987).
Despite their initial observations on clemency's justice-enhancing aspects, however, both Hamilton and Iredell devoted the bulk of their responses to defending the clemency power on what I have called ''justice-neutral'' grounds: pragmatic reasons unrelated to whether it would be fair to remit punishment in a particular case. Hamilton contended that the principal argument for vesting the power to pardon in the President alone was that in ''seasons of insurrection,'' a well-timed offer of pardon to the rebels could be essential to the preservation of the government. The Federalist No. 74, at 449. (The prescience of this observation was borne out after the Civil War, when Presidents Lincoln and Johnson employed the clemency power generously to help bind together a divided nation).
Iredell also argued that shrewd use of the pardoning power might prevent a civil war, but cited additional justice-neutral reasons for giving the power to the President. Iredell contemplated that the clemency power could be used to procure the testimony of the accomplices of great criminal offenders and to protect that ''set of wretches whom all nations despise, but whom all employ''—namely, spies who have proved useful to the government. Iredell Address at 18. These arguments evidently carried the day because the Constitution was ratified with the provision vesting the clemency power solely in the President, intact.
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C. The ''gloss of life:'' Presidential Uses of the Clemency Authority
As Justice Frankfurter observed in Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1952), in evaluating presidential powers, we cannot disregard ''the gloss which life has written on them.'' This is true also of the clemency power. Once the Constitution was ratified, Presidents did not hesitate to use clemency in ways that benefitted the republic In 1795, President Washington granted an unconditional pardon to many of the participants in the Pennsylvania Whiskey Rebellion. John Adams, in order to serve ''the public good,'' likewise issued a presidential pardon to all persons involved in an insurrection in Pennsylvania.
After the Federalists were soundly defeated in the election of 1800, President Jefferson utilized the clemency power to pardon all those convicted and sentenced under the Alien and Sedition Act, which the Federalists had used, in clear violation of the First Amendment, to silence the Jeffersonian Republicans. President Jefferson also attempted to utilize the pardon power in pragmatic fashion to procure the testimony of an alleged ''accomplice'' of Aaron Burr during Burr's treason trial. This attempt failed when the witness indignantly refused the pardon and declared his and Burr's innocence on the stand, resulting in the acquittal of Jefferson's long-time political rival.
President Madison, in gratitude to the Barrataria pirates who had aided the defense of New Orleans against the British, pardoned all crimes and dismissed all indictments against any who could show they had helped defend the city. The executive clemency power was also used in pragmatic fashion, as it had been in England, to man the navy. Presidents Harrison and Cleveland used the clemency power by granting a general amnesty to members of the Mormon Church, forgiving past crimes of polygamy, but warning that those ''who shall fail to avail themselves of the clemency hereby offered will be vigorously prosecuted.'' James D. Richardson, 7 A Compilation of the Messages and Papers of the President 5803 (1897).
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Clemency played an especially crucial role in restoring tranquility to the nation following the Civil War, when Presidents Lincoln and Andrew Johnson repeatedly issued amnesties to persons who had fought against the Union, conditioned on their taking an oath to uphold the Constitution. Although Lincoln's amnesty proclamation was authorized by statute, many became disenchanted with what were widely perceived as lenient presidential clemency policies and, during Johnson's administration, Congress sought to curtail the clemency power through legislation. However, Congress's efforts to restrict the President's power were unavailing, largely because of the expansive interpretation given to the presidential pardoning power by the branch whose duty it is to say what the law is: the judiciary.
II. JUDICIAL INTERPRETATION OF THE CLEMENCY AUTHORITY
Prior to the drafting of the United States Constitution, political theorists generally believed that it was impossible for clemency to exist in a democracy, because lacking a monarch, there was no one ''above the law'' who could forgive crimes against society. As we have seen, the framers disregarded the conventional wisdom and vested the clemency power entirely in the President. However, for some time, the courts tended to equate the President's exercise of clemency with the royal pardoning prerogative of the British monarch.
In United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833), the first Supreme Court case to discuss the presidential clemency power, Chief Justice John Marshall defined a pardon as ''an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.'' Implicit in Marshall's definition is the notion that the executive can dispense such ''grace'' in any form, at any time, and for any reason, in all cases except impeachment.
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However, the Court has since eschewed Marshall's vision of a pardon as something akin to divine forgiveness. In Biddle v. Perovich, 274 U.S. 480 (1925), the Court limited an earlier holding that a presidential pardon could be refused and decided that the clemency power permitted commutations of sentences regardless of whether the recipient accepted the proffered commutation. Justice Holmes reasoned that this was true because clemency is not a private act of grace, but an integral aspect of our constitutional system:
A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed. Just as the original punishment would be imposed without regard to the prisoner's consent and in the teeth of his will, whether he liked it or not, the public welfare, not his consent determines what shall be done.
Id. at 486 (emphasis supplied). The President's authority to use clemency as a tool to advance the public welfare has been consistently interpreted broadly.
The President has been held to possess the power to grant not only reprieves and pardons as expressly authorized in the Constitution, but every other form of clemency as well. In Ex parte Wells, 59 U.S. (18 How.) 307 (1855), the Court held that the chief executive could condition the grant of pardons on the recipient's acquiescence to virtually any terms.
During the Reconstruction era, when Congress was for the first time questioning the presidential power to grant general amnesties, the Court confirmed that the executive could not only dispense this form of clemency, but could also grant conditional amnesties. See Armstrong v. United States, 80 U.S. (13 Wall.) 154, 155–56 (1872) (upholding the validity of Andrew Johnson's proclamation of pardon and amnesty of December 25, 1868). In a similar vein, the Court ruled in Osborn v. United States, 91 U.S. 474 (1875), that the presidential clemency power includes the power to remit fines and forfeitures.
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The Court also has rejected the notion that the coordinate branches of government can in any way limit the executive's clemency power. In Ex parte Garland, 71 U.S. (4 Wall.) 333,380 (1866), the Court gave perhaps its broadest characterization of the plenary scope of executive clemency:
The [clemency] power thus conferred is unlimited, with the exception [in cases of impeachment]. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.
More recently, in Schick v. Reed, 419 U.S. 256 (1974), the Court reaffirmed this view by holding that in commuting a criminal sentence, the President is not limited to replacing it with another, legislatively-authorized sentence for the particular crime. Chief Justice Burger reasoned that, because the power to pardon flows from the Constitution alone, ''it cannot be modified, abridged, or diminished by the Congress.'' Id. at 266. This conclusion is consistent with the Constitution's exclusive commitment of the clemency power to the executive branch, coupled with the drafters' rejection of a legislative check on the executive clemency power.
A more difficult issue implicit in Schick concerns the authority of the judiciary to limit the President's clemency power, an issue which pits the notion that the presidential clemency power should be unfettered against the principle that the judiciary is responsible for reviewing the constitutionality of executive actions. In Ex parte Grossman, 267 U.S. 87 (1925), the Court again construed the clemency power expansively, this time at the judiciary's expense, by holding that the power to pardon extends to the offense of criminal contempt of court.
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In Grossman, the Department of Justice had argued on behalf of the trial court that the President cannot pardon criminal contempt of court, because to do so would impair the power and functions of the judiciary. Rejecting this separation-of-powers argument, Chief Justice Taft reasoned that the possibility that the pardoning power could be perverted so as to destroy the deterrent effect of judicial punishment is not a sufficient basis for limiting the President's discretion to grant clemency. ''Our Constitution,'' wrote Taft for a unanimous Court, ''confers [full] discretion [to pardon] on the highest officer in the nation in confidence that he will not abuse it.'' Id at 121. If the power were abused, the remedy, according to the Grossman Court, would be ''resort to impeachment rather than to a narrow and strained construction of the [clemency power] of the President.'' Id.
Although the Supreme Court has never spoken to the issue as directly, the Court has suggested that narrow limitations on the power might be imposed through the process of judicial review where an act of clemency impairs other constitutional provisions. In Knote v. United States, 95 U.S. 149 (1877), the Court observed that a presidential pardon, like the king's pardon at common law, may not affect the vested rights of third parties. By similar reasoning, once proceeds from the sale of an offender's property have been paid into the United States treasury, a presidential pardon cannot secure the return of such proceeds to the offender, for to do so would contravene the appropriations power reserved to Congress in article I of the Constitution. Id. at 154–55. In Burdick v. United States, 236 U.S. 79 (1915), the Court upheld an offender's right to refuse a presidential pardon granted in order to impel him to testify in a case in which he had asserted his right against self-incrimination. Implicit in the Court's reasoning is the notion that the clemency power must be balanced against the rights of a witness under the Fifth Amendment: ''[b]oth have sanction in the Constitution, and it should, therefore, be the anxiety of the law to preserve both,—to leave to each its proper place.'' Id. at 93–94.
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The Court in Schick v. Reed, 419 U.S. 256 (1974), likewise recognized that the executive is free to attach any condition on the pardon ''which does not otherwise offend the Constitution,'' presumably as determined by the judiciary. Thus, at least in theory, there is support for the notion that the judiciary can review the constitutionality of some exercises of the executive clemency power. However, issues of standing and justiciability, notably the political question doctrine articulated in Baker v. Carr, 369 U.S. 186 (1962), would surely complicate such review. Only in Burdick, which was limited in Biddle v. Perovich, 274 U.S. 480, 488 (1927) discussed earlier, has the Court ever used the power of judicial review to curtail the President's clemency power.
III. THE FUTURE OF THE CLEMENCY AUTHORITY
As the previous discussion suggests, our understanding of the clemency power has changed over time, so that today clemency is best understood as a unique ''part of the Constitutional scheme'' that when granted, represents a determination that ''the public welfare will be better served by inflicting less than what the judgment fixed.'' Biddle v. Perovioch, 274 U.S. 480, 486 (1927). It is important at this time, when the clemency power is under fire, to keep in mind the many ways in which clemency, purposely ''unfettered'' according to the intent of the framers, advances the public welfare.
A. The Continuing Need for Clemency
The most obvious benefit of clemency is that it provides a ''fail-safe'' to correct the mistakes of an imperfect justice system. Although today our legal systems are generally much more refined than the common law systems in which clemency originated, mistakes inevitably occur. See generally Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Texas Law Review 569, 611–14 (1991)[hereinafter, ''The Quality of Mercy at———'']. In Illinois, executions were recently halted and Governor Ryan established a clemency commission to study the administration of the death penalty after it came to light that since 1990, that state has executed 11 inmates and freed 10 from Death Row. Outraged Illinois Rethinks Death Row, The Detroit News p. A18 (Feb. 14, 1999). Clearly, as the federal system gears up to reinstate executions, and limits on appeals reduce the ability of judges to ameliorate punishment, there remains a need for clemency in cases of actual innocence, or where there are other questions about guilt.
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Second, clemency is a vital part of our system of checks and balances. Of course, it is easy to see how by remitting punishment imposed by the courts applying the laws of the legislature, the clemency power is a check on both of these branches. Indeed, Thomas Jefferson contemplated using the power in just such a manner by pardoning individuals he considered to have been unconstitutionally convicted under the Federalist-enacted Sedition Act. See William J. Duker, The President's Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 530 (1977).
But the clemency power can be properly viewed as enhancing the legislative and judicial powers as well. Members of the Supreme Court have suggested, for example, that without the availability of at least some avenue of clemency, imposition of the death penalty might be improper. See Gregg v. Georgia, 428 U.S. 153, n. 50 (1976)(opinion of Justices Stewart, Powell, and Stevens) (a system which included capital punishment but did not provide for executive clemency would be ''totally alien to our notions of criminal justice''). By allowing for the possibility of exceptions to general rules promulgated by the legislature when those rules would frustrate the goals sought to be furthered, clemency ensures that laws will be executed in a way that fulfills Congress' broader objectives.
Third, although it may seem easy to overlook in the heat of the current crisis over clemency, principled remission of punishment by the executive actually promotes public confidence in our system of justice by providing a mechanism to remit anomalous sentences. Historically, clemency has been used to equalize disparate sentencing that creates an impression that our system of justice is arbitrary, as where one individual receives a far harsher sentence than an accomplice who is more culpable. Similarly, clemency has been properly used to diminish the punishment imposed on those who were not entirely responsible for their actions because of mental retardation, brain damage, or other infirmity. See Quality of Mercy at pp. 625–28.
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Fourth, clemency fulfils an important role in allowing the President to achieve broad policy goals that may be unrelated to achieving ''justice'' in individual cases, but which nevertheless advance the public welfare. In the past, these goals have included binding together a divided country following insurrection or civil war, rewarding individuals who were guilty of crimes but who had rendered great service to the nation, healing the wounds inflicted by a shattered presidency, manning the navy, and preventing the punishment of individuals who, in the view of the President, had been subjected to indictment for acting patriotically in matters of disputed public policy.
Fifth, clemency provides an opportunity for the executive to initiate or participate in a dialogue regarding the wisdom, efficacy, or constitutionality of our laws. As I mentioned earlier, President Jefferson did just that when he granted pardons to persons convicted under the constitutionally-suspect Sedition Act. Similarly, many of President Clinton's grants of clemency can be seen as taking aim at what many today, including judges implementing the laws, view as overly-harsh mandatory sentencing standards pertaining to the possession or sale of illegal drugs. Likewise, on the state level governors have used clemency to mitigate the punishment of women who committed crimes while subject to ''battered spouse syndrome,'' but who were not permitted to raise that as a defense. See Daniel Kobil, Do the Paperwork or Die: Clemency, Ohio Style?, 52 Ohio State Law Journal 655, 657 and n. 13 (1991).
Finally, grants of clemency are an important-perhaps the primary-way of infusing an element of mercy into our system of criminal justice. Mercy lies at the heart of the clemency power. Despite today's prevailing philosophy of justice that favors meting out deserved punishment regardless of circumstances, it is important to remember that mercy has an officially-sanctioned place in our system in the form of executive clemency. See Margaret Love, Of Pardons, Politics, and Collar Buttons: Reflections on the President's Duty to Be Merciful, 27 Fordham Urban Law Journal 1483, 1500–06 (2000) [hereinafter, ''Pardons, Politics, and Collarbuttons at———'']. Just as we in our private lives aspire to behaving in a merciful manner, in delegating authority to the President who executes the laws on our behalf we also grant him the power to exercise mercy in our stead.
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That this is indeed an important aspect of the clemency power can be discerned from the statement of our first President explaining one of the earliest grants of clemency. In justifying his pardons of participants in the Whiskey Rebellion of 1794, President Washington observed:
For though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good than it is with my personal feelings to mingle in the operations of Government every degree of moderation and tenderness which the national justice, dignity, and safety may permit.
James D. Richardson, 1 A Compilation of the Messages and Papers of the President 176 (1897).
Thus, the public good can be served by allowing for an official act of mercy that recognizes the rehabilitation of citizens who made mistakes, but have repaid the debt they owed to society. Mercy may also be appropriate where a sentence, though legally correct, seems overly harsh in light of all the circumstances, as President Clinton apparently concluded was true in the cases of a number of people serving extremely long mandatory sentences for a first-time violation of federal drug laws. Yet the controversy surrounding President Clinton's recent grants of clemency has prompted many to consider whether the clemency power needs to be reformed.
B. Possible Reform of the Clemency Power
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The public outcry against President Clinton's use of the clemency power suggests that our constitutional system may indeed have been harmed by the way in which the power was exercised. However, the danger posed is not the obvious one that some have suggested—that clemency might be dispensed improperly in the future, because the President's authority is so sweeping. Rather, the real danger posed by the controversy over the Clinton pardons is that it will cause clemency, with its attendant benefits to the public welfare, to disappear entirely.
Despite the importance of clemency in our constitutional scheme, this power of the President has been in decline for a long time. My colleague on this panel, former U.S. Pardon Attorney, Margaret Love, has documented the decrease in the use of clemency during the administration of George H. W. Bush, coinciding with an official stance of being ''tough on crime.'' As Ms. Love has pointed out, clemency was least used by former President Bush, continuing a trend of parsimoniousness established by his predecessor, Ronald Reagan. Pardons, Politics, and Collarbuttons at 1492–97; see also Quality of Mercy at pp. 602–03, 640–41 (remarking on the perceptible decline in clemency after President Ford's administration based on clemency statistics compiled by the Office of the United States Pardon Attorney 1969–1990).
Presidents who follow President Clinton could be unwilling to use the clemency power at all, in view of its obvious political risks. President Ford's pardon of Richard Nixon may have cost him the 1976 election, sparking a precipitous decline in the use of clemency. President Clinton's undisciplined use of clemency may also exact a high cost in terms of his reputation and historic legacy. If the past is prologue, it does not seem far fetched to speculate that such repercussions could threaten, in practical effect, to wipe out use of the clemency power for the foreseeable future. On the other hand, a proper appreciation of the importance of clemency to our constitutional scheme might outweigh considerations of political expediency in the minds of future Presidents, thereby preventing atrophy of the power. Only time will tell us how this delicate balance will be struck.
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Under these circumstances, it is my belief that amendment of the Constitution to allow for a legislative veto of grants of clemency is unnecessary, and potentially dangerous in that it could effectively delete the clemency power from the Constitution. Such an amendment should be rejected for the same reasons that a similar proposal was discarded by the drafters of the Constitution. As Rufus King of Massachusetts bluntly put it, ''a Legislative body is utterly unfit for the purpose.'' 2 M. Farrand at 626. The recorded debate of the Constitutional Convention indicates that the framers thought that the legislature was either too powerful, or too prone to being swayed by the passions of the day to be entrusted with the clemency power.
Our recent history with controversial judicial nominations and cabinet appointments suggests that the framers may not have been far off the mark. One can imagine the public relations points that could be scored by the opposition off of the President's proposed pardons if every lurid aspect of potential clemency recipients' backgrounds became a basis for political wrangling. If the clemency power did not completely disappear following such an amendment, it would almost certainly be relegated to use only in the most innocuous circumstances. This may be why a similar proposal that was made in response to President Ford's unpopular pardon of former President Nixon died in the Senate in 1974.
Rather than amending the Constitution, Congress might explore other methods of communicating to the President both its recognition of the importance of the clemency power to the public welfare, and its desire that the power be exercised regularly in a principled, informed fashion. It is my hope that hearings such as this one will encourage discussion of the clemency power, and contribute to a wider appreciation of its vital role in our Constitutional scheme.
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Thank you for this opportunity to engage with you in public discussion of this important issue. I will be happy to answer any questions that you have.
Mr. CHABOT. Thank you very much, professor. We appreciate your testimony. We have got a series, we understand, of about five suspension votes on the floor, and rather than take another witness now, who I am sure would not go over the 5 minutes—but in light of the possibility that it might go over a couple of minutes and we all have to run over—I will go ahead and recess at this time, and we will be back as soon as the other votes are over.
So we would ask all the Members to come back as quickly as they can after the last of these five votes, and then we will continue. So we are in recess.
[Recess.]
Mr. CHABOT. The Committee will come back to order, and we apologize for the inconvenience of the interruption due to the votes on the floor, but obviously that is an important responsibility of all of the Members of the Committee as well. So we will now move to Professor Lichtman. We thank you for coming here and testifying. We would ask you, again to, as much as possible, try to keep within the 5-minute rule. Thank you very much.
STATEMENT OF ALLAN J. LICHTMAN
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Mr. LICHTMAN. Certainly. Thank you, Mr. Chairman and distinguished Members, and special greetings to my high school classmate, Jerry Nadler. I must confess that I started Mr. Nadler down the road to this kind of villainy when as captain of the Stievison High School debating team, I recruited him for our team. I congratulate the Committee for assembling this tremendous array of legal scholars on the pardoning process.
That may sound like a self-serving statement, but it is not, because I am not one of them. I am not here to speak to you as a legal scholar who deals with the pardoning process, but rather to give a somewhat different perspective. I am here as a political historian to talk about past controversies, prior to the Clinton controversies, with respect to the use of Presidential pardons. Alexander Hamilton, in arguing for granting the pardoning power solely to the President, argued in the Federalist that a President could use this power to check the judiciary in cases of what he called ''unfortunate guilt,'' a term that is obviously subject to all kinds of interpretation.
Hamilton also argued, though, for a rather explicitly political use of the pardoning power, to ''restore the tranquility of the Commonwealth,'' during times of insurrection, rebellion, war and other threats to public order and comity. The pardoning power has been politically charged throughout American history, and some observers would argue it has not always been exercised with what Alexander Hamilton called scrupulousness and caution.
The first nationally controversial use of the pardon power came during the administration of our second President, John Adams. Adams rejected the advice of his entire Cabinet and pardoned anti-tax rebels, those involved in the Freeze Rebellion, 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 during his term. But Adams incurred the wrath of members of his own party, who believed that he was encouraging insurrection. One Federalist critic charged that, ''undue mercy to villains is cruelty to all the good and virtuous.''
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Perhaps the most controversial use of the pardon power came during the administration of Andrew Johnson, a war Democrat who had been put on Abraham Lincoln's ticket in 1864 for unity purposes and who became President upon Lincoln's death. Johnson issued literately thousands of individual pardons to ex-Confederates who were not covered by the general post-Civil War amnesty.
He infuriated Republicans in Congress who believed he was eviscerating the goals of the Civil War and opening a door to the return of white supremacy in the South. His pardons contributed to his impeachment by the Republican House of Representatives. In recent times, the pardon of wealthy and well-connected individuals has sparked much controversy. Richard Nixon in 1971 pardoned labor racketeer Jimmy Hoffa of the Teamsters union without going through the full process for pardon review. This led to charges of political collusion, insider pleading and illegal campaign contributions.
By the way, in response to a question raised by Representative Hutchinson, Nixon did attach a condition to this pardon that Hoffa not run for or hold labor union office, something that infuriated Hoffa. He challenged it in the courts, but his sudden disappearance from the face of the earth mooted that lawsuit.
Two other wealthy and famous figures involved in the Watergate scandals for making illegal contributions later received pardons. Ronald Reagan pardoned George Steinbrenner shortly before leaving office and George Bush pardoned Armand Hammer. The Steinbrenner and Hammer pardons prompted ironically, in the editorials of the time, the same kind of denunciations we hear about the Clinton pardons today. The headline of an editorial in the Los Angeles Times read, ''When the rich, famous Steinbrenner gets a pardon, justice takes strikes three.'' 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.''
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An opinion editorial in the San Diego Tribune talking about the Hammer pardon said, ''This is a disturbing example of how synonymous big money is with clout in American politics.'' Of course, the two most well-known and controversial pardons of the late 20th-century were Gerald Ford's pardon of Richard Nixon in 1974 and George Bush's pardon of former Defense Secretary Casper Weinberger, and other figures implicated in the Iran-Contra affair.
Ironically, although Ford took a big political hit for his pardon of Nixon, in my view he argued with some persuasiveness that this pardon fit the Alexander Hamilton rationale of restoring order and comity to American public life in a time of troubles. Of course, I need not go into the controversies surrounding George Bush's pardon.
Thus Bill Clinton's highly questionable use of the pardon power is neither the first, nor likely the last such episode in American history. In my view, the lesson of history is that appropriate use of the pardoning power requires a delicate balance, not just of caution, but also of courage, something that has not been emphasized in the recent controversy.
In my view, a President must have the courage, like John Adams, to risk denunciation when he believes the cause is just, but must take due caution to avoid special pleading, inside dealing or even the appearance that pardons might be up for sale. While I might deplore pardons that are kind of dropped out from 10,000 feet as a President flies out of town, while I think perhaps Congress might disagree with some pardons, I would agree with my distinguished colleague, Professor Kobil, that there is not a sufficient historical record for a constitutional amendment or for Congress trying to stretch the Constitution by legislating on this matter. I would prefer Presidents to be checked by public opinion and by the airing through hearings such as this one.
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[The prepared statement of Mr. Lichtman follows:]
PREPARED STATEMENT OF ALLAN J. LICHTMAN, PROFESSOR OF HISTORY, AMERICAN UNIVERSITY
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.
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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.''
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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.
Mr. CHABOT. Thank you very much for your testimony here this morning, Professor. Now we will move to Ms. Love, and we appreciate your willingness to come testify today as well.
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STATEMENT OF MARGARET COLGATE LOVE
Ms. LOVE. I appreciate very much being here. My name is Margaret Love, and I am a lawyer in private practice here in Washington. Prior to that, I served in the Justice Department for 20 years. I am sort of tempted, in the company of these distinguished scholars, to describe myself as a recovering bureaucrat. From 1990 to 1997, I served as Pardon Attorney in the Department of Justice, and prior to that time I had oversight responsibility as a member of the staff of the Deputy Attorney General for 3 years of that office.
So I had firsthand knowledge, experience with the administration of the pardon power over a 10-year period during the presidencies of George Bush and Bill Clinton. I have a rather different perspective from, I would say, the ground level of pardoning.
In my prepared testimony, I discuss the administration of the pardon power in historical context with particular emphasis on the role of the Attorney General. The fact that the President has relied on the Attorney General for advice in clemency matters reflects and reinforces the link between executive clemency and the ordinary operation of the Federal criminal justice system.
Until quite recently, hundreds of pardons and commutations were granted each year to ordinary individuals convicted of garden variety crimes. Commutation was available to ensure a fair result in individual cases by cutting short a prison sentence deemed too long for one reason or another. A full pardon emphasized the value of rehabilitation as a goal of the justice system.
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Pardon has also used been used to signal a President's priorities and to close a painful chapter in our national history. Pardoning has not been reserved to the end of a President's term or for holidays, but has taken place at regular intervals, four or five times a year, every year.
Most of the time, no one took much notice of a President's pardons, except those who received them, and the regulations guiding the Justice Department's processing of pardon applications have remained essentially the same since the McKinley administration. About 20 years ago the Federal pardon power began to be exercised less frequently and less generously. Gestures of mercy were regarded as inconsistent with a tough time control strategy and politically dangerous.
Within the Department of Justice, the pardon program lost its independent voice and pardon recommendations came to reflect the unforgiving culture of Federal prosecutors. Fewer and fewer cases were recommended for favorable Presidential action and pardon grants became correspondingly rare. At the same time, the demand for clemency increased, primarily because of longer prison sentences and the abolition of parole, and because of oppressive civil disabilities that impede an offender's re-entry into the community. Convicted felons are disqualified, not just from voting, but also from an array of public benefits and employment opportunities.
At the beginning of the Clinton administration the number of applications for pardon and commutation increased dramatically. At the same time, the number of grants fell to an all-time low. President Clinton issued no pardons at all in four of his first 5 years in office, and until the final weeks of his term had issued proportionately fewer pardons than any President in history.
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I believe that it is the Justice Department's reluctance to recommend cases favorably for clemency that was, at least in part, responsible for the extraordinary breakdown of the pardon process at the end of the Clinton administration. On several occasions President Clinton publicly voiced his dissatisfaction with the general approach to clemency cases being taken by his own Justice Department, and in the end he decided simply to work around it, relying instead on his own White House staff and any other sources of advice he found useful.
Rather than linger on President Clinton's peculiar notion of his pardoning responsibilities, however, with the details of his final pardons, I would prefer to look ahead to the lessons they can teach us for the future. It seems to me that at the very least they offer an opportunity to take a hard look at the role that pardon plays in the modern-day Federal justice system. Without coming to grips with that central question, it is unwise to consider imposing constitutional limits on the President's pardon power or bureaucratic burdens on its exercise.
Frankly, like Professor Kobil, I very much doubt that future Presidents will need to be restrained in their use of pardon power, given the in terrorem example of the final Clinton grants. More likely they will need to be encouraged. I would like to conclude these remarks with a word about Congress' interest in the pardoning process.
The Framers perceived pardon as a necessary mechanism for making exceptions to a rigid system of laws and for providing a check on the other branches of government. While they rejected a direct congressional role in granting pardons, I believe they would have thought it entirely appropriate for Congress to inform itself about particular grants and about the President's pardoning practices.
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This is particularly important at a time when so many questions are being raised about the fairness of the justice system, relating in particular to guideline sentencing and the escalating prison population. It is important for Congress to be receptive to the messages pardons send about the state of the criminal law. For our legal system, this fairness depends upon frequent extraordinary interventions, it is probably not a healthy one.
In this fashion, the pardon power helps the legislature to do its job better, as evidenced by recent developments in New York State. Conversely, congressional interest in pardons can help the President assess how efficiently his power is being administered and whether it is serving appropriate policy goals.
Many of the concerns raised in connection with the final Clinton pardons are directly attributable to the irregularity and infrequency with which President Clinton acted on pardon applications throughout his two terms, yet at the same time the Justice Department's pardon workload had greatly increased, resulting in a doubling of the Pardon Attorney's budget between 1993 and 1997. I often wondered whether anyone outside the department would raise a question about this or take any interest in it, but to my knowledge no one did.
I do not want to conclude without saying that I find a lot to be grateful for in the final Clinton pardons. In the first place, two-thirds of them went to ordinary people who had filed applications with the Justice Department and had waited patiently for the relief they sought, some for a number of years. Twenty of his 36 commutations went to low-level nonviolent drug offenders who had already spent between six and 12 years in prison and who will now have a second chance at living a normal, productive life.
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There remain more than 3,000 pardon cases awaiting decision in the Pardon Attorney's office. Perhaps all the attention being paid to the pardon process will mean that other worthy applicants will get the relief they are seeking before too much longer.
More generally, the otherwise unfortunate circumstances of the final Clinton pardons will offer President Bush and his Attorney General an early opportunity and the incentive to review a number of issues about the use of the pardon power and about how it is administered. I expect that this in turn will lead them to take a careful look at how the criminal laws are functioning, at their prosecutors' investigative and charging practices, and at the operation of the sentencing guidelines. Perhaps they will be back here in a year or two with some suggestions for change.
[The prepared statement of Ms. Love follows:]
PREPARED STATEMENT OF MARGARET COLGATE LOVE, PARDON ATTORNEY, US DEPARTMENT OF JUSTICE, 1990–97
My name is Margaret Love, and I am a lawyer in private practice in Washington, D.C. From 1990 to 1997 I served as Pardon Attorney in the Department of Justice, and in that capacity I had primary responsibility for investigating and making recommendations to the President on petitions for pardon and commutation of sentence from persons convicted of federal offenses. For two years prior to that time I served on the personal staff of the Deputy Attorney General, where I oversaw the operation of the Office of the Pardon Attorney. I therefore had firsthand experience with the administration of the pardon power over a ten year period during the administrations of Presidents Bush and Clinton. I am also familiar with pardoning practices in previous administrations. Finally, I have studied and written about the evolving function of pardon in the federal criminal justice system. See ''Of Pardons, Politics, and Collar Buttons: Reflections on the President's Duty to Be Merciful,'' 27 Fordham Urban L. Rev. 1483 (2000).
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I do not intend to speak here to the merits of any particular clemency decisions made by President Clinton in his final weeks in office. Nor will I comment on the way in which pardon matters were evidently handled in the waning days of the Clinton Administration, either in the Department of Justice or the White House. Rather, I want to talk generally about the role pardon has played in the federal justice system over the years, and how the administration of the pardon power by the Justice Department has facilitated that role. I will also describe how President Clinton's pardoning practices compared to the practices of his predecessors, based on my personal experience. Finally, I will make some suggestions about how the administration of the pardon power can in the future be reformed so that it can once again play the role envisioned for it by the Framers of the Constitution.
Others testifying here today will review the origins and rationale of the pardon power, and particular instances of its exercise over the years. I expect they will have suggestions for avoiding the irregularities and abuse that marked so many of the final Clinton pardons, including the enactment of legislative controls over the administration of the power. My own experience leads me to recommend a more affirmative approach, because I would not want to discourage whatever inclinations our new President may have to return to the generous pardoning practices of his predecessors.
As I see it, the real issue raised by this episode relates not so much to President Clinton's peculiar notion of his pardoning responsibilities, but rather to the role that pardon should play in the modern day criminal justice system. I was accountable for the day-to-day administration of the pardon power at a time when its routine use had been neglected by several successive Presidents, and its function trivialized within the Justice Department. This process of atrophy began well before President Clinton took office, though it was accelerated during his tenure. As pardon became less and less available to ordinary people through established channels, the scene was set for the extraordinary events of January 20. In many respects, therefore, the final Clinton pardons were an accident waiting to happen.
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Without coming to grips with the central question of pardon's place in the justice system, it is fruitless to consider limiting the President's power by constitutional amendment, or imposing bureaucratic burdens on its exercise by statute. In any event, it is highly unlikely that future Presidents will need to be restrained in their use of the power. More likely, they will need to be encouraged.
Rather than wring our hands over stopgap remedies for a problem that is unlikely to recur, we should instead reenact the debate over the pardon power that took place at the Constitutional Convention in 1787. Only then will we be in a position to choose whether pardon should be restored to its historic place as an integral part of the federal justice system, or whether it should be relegated to the status of a vestigial perk of office that, if impossible to get rid of, must somehow be contained. If the outcome of this debate in 2001 is the same as it was in 1787, it will be clear that the President must be trusted to exercise the power without legislative constraint. If it is not, then perhaps we should think about doing away with the pardon power altogether.
THE ADMINISTRATION OF THE PARDON POWER IN HISTORICAL CONTEXT
From the beginning of the Republic, the President's constitutional power to pardon has been exercised and administered as an integral part of the federal criminal justice system. While we are most familiar with the notorious and colorful grants of clemency that served overtly political purposes, dozens of ordinary individuals were granted relief less visibly each year from excessive prison sentences or oppressive civil disabilities. At a time when the justice system was relatively simple and inflexible, pardon afforded almost the only way for federal offenders to obtain review of their convictions and early release from prison, and restoration of their legal rights of citizenship.
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Since the middle of the 19th century, the Attorney General has been responsible for advising the President on all requests for executive clemency. The Attorney General's central role in administering the constitutional pardon power reflected and reinforced the link between clemency and the ordinary operation of the federal criminal justice system. Until quite recently, pardon could be counted on to assure a fair result in individual cases, to signal the President's law enforcement priorities, and to underscore the value of rehabilitation as a goal of the justice system.
In 1898 the first clemency rules promulgated by President McKinley directed all applicants for executive clemency to submit their petitions to the Attorney General, and specified how such applications would be processed within the Justice Department. Over the next hundred years these clemency regulations would be reissued on several occasions, but they remained remarkably similar in each new iteration, providing perhaps our most venerable and consistent framework for governmental decision-making.
Prior to President Clinton's final grants, the number of situations in the past fifty years in which pardon was granted without a prior Attorney General investigation and recommendation pursuant to these regulations could be counted on the fingers of one hand. (These are President Ford's 1975 pardon of Richard Nixon, President Reagan's 1981 pardon of two FBI officials who had authorized illegal surveillance of radicals, and President Bush's 1992 pardon of six Iran-Contra defendants.)
This is not to say that the President has always followed the advice of his Attorney General, though the records of the Pardon Attorney and my own experience indicate this was usually the case. But the practice gave the President full access to the facts of a case, to the law enforcement perspective on its merits, and to the counsel of a key member of his Cabinet. And, because the Attorney General never divulged the nature of his recommendation, the President could deflect at least some criticism resulting from a particular grant by referring to his reliance on the Attorney General's advice. Until recently, most pardon warrants signed by the President contained a phrase alluding to the Attorney General's recommendation.
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This system worked efficiently and for the most part quietly, resulting in over a hundred grants of pardon and commutation almost every year between 1900 and 1980, most of them to ordinary individuals convicted of garden variety crimes. Pardon warrants were signed by the President four or five times a year, and there was no particular increase in grants at the end of an administration. While there was an occasional unpopular grant, the only federal pardon-related scandals during the 20th century involved the rare situations that were handled outside of the normal Justice Department process.
For example, President Truman was criticized for seven end-of-term pardons that were issued without any recommendation from the Justice Department, all but one of which went to current or former government officials who had served their sentences. The resulting outcry prompted President Eisenhower's Attorney General Herbert Brownell to announce a ''goldfish bowl'' policy of making pardon grants public, as well as the names of persons recommending them, returning to the policy of disclosure in effect prior to the New Deal. See Walter Trohan, ''Bridges Seeks to End Secrecy in U.S. Pardons,'' New York Herald Tribune, August 30, 1953, at p.10.
Within the White House, the business of reviewing clemency recommendations forwarded from the Justice Department became, along with judicial selection, part of the routine housekeeping business of the White House Counsel's office. Until the Clinton administration, this formal and regular process was scrupulously observed by the White House, even after the instance of pardoning began to decline during the administration of President Reagan.
PARDONING PRACTICES DURING THE CLINTON ADMINISTRATION
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Early in President Clinton's first term there were signs that he might vary his predecessors' consistent practice of relying on the Attorney General's advice in clemency matters. For example, the White House undertook to respond itself to correspondence and inquiries about pardon matters, and many of its written responses included a phrase suggesting that the President considered the Justice Department only one of many potential sources of advice. Also, in contrast to past administrations, the Clinton White House did not act on clemency cases in a regular and timely fashion: no grants at all were issued in four of President Clinton's first five years in office, and only a handful of pardons were granted in later years, usually at Christmas. The total number of cases disposed of did not keep pace with the unprecedented number of new applications each year, so that the case backlog reported by the Pardon Attorney grew steadily larger each year. (When President Clinton departed Washington on January 20, he left behind him nearly 4000 pending clemency cases, all of which are now of course the responsibility of the Bush Administration.)
The FALN grants in the summer of 1999 demonstrated President Clinton's willingness to have the White House staff play a role in pardon matters entirely independent of the Justice Department. The Department had recommended against clemency for the FALN defendants in December of 1996, while I was still in charge of the pardon program. Later, after my departure, the Department apparently provided the President some less definitive information about the cases without withdrawing the original negative recommendation. In the end, in making those controversial grants the President avowedly relied entirely upon the advice of his White House Counsel, advice that in turn was based upon a White House investigation of the cases. This evidently deprived him not only of a full picture of the law enforcement implications of the grants and the likely public reaction to them, it also precluded his being able to allow a political appointee with Cabinet status to take some responsibility for the situation. The FALN grants foreshadowed the endgame.
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