HOW CLINTON'S PARDONS MAY AFFECT FUTURE PRESIDENTS' PARDON POWER: Fallout From Clinton's New York Times Op Ed

By EDWARD LAZARUS

Tuesday, Feb. 20, 2001

William Jefferson Clinton's defense, in a New York Times Op Ed, of his last-minute presidential pardons raises at least as many questions as it answers. Even the Times itself today was critical of the Op Ed. And already, Mr. Clinton is having to backtrack on his claim that three "distinguished Republican attorneys" — Leonard Garment, Brad Reynolds, and Lewis Libby — "reviewed and advocated" the case for the Marc Rich/Pincus Green pardons. As it turns out, while these lawyers helped build a defense for the pardon recipients, they played no role in the pardon request itself.

No doubt Clinton critics in Congress and elsewhere are digging beneath Clinton's other claims and defenses, as presented in the Op Ed — especially his crucial "no quid pro quo" denial that Denise Rich's contributions to the Clinton library and various Democratic political campaigns influenced the pardon decision.

But what I found most interesting about Clinton's explanation was not these obvious omissions. Rather, it was the way Clinton's general discussion of the pardon power, ironically, actually highlighted the significant damage he may have caused when he showered get-out-of-jail-free cards on his political supporters.

The Varying Historical Justifications for the President's Broad Pardon Power

In the wake of the Clinton pardons, critics have already started talking about limiting the Constitution's grant of broad, unreviewable "plenary" power to the President to award "Reprieves and Pardons" for federal offenses. The Clinton Op Ed, in contrast, makes a strong case (albeit implicitly) for why such unfettered executive authority was a wise invention.

American history is littered with prosecutions that, in hindsight, appear overzealous or politically motivated — and Clinton's Op Ed references several of them. For example, Eugene Debs garnered millions of votes when he ran for president, but the nation sent him to jail anyway, for the "crime" of giving a politically unpopular speech. President Harding was more than justified in pardoning Debs.

Other prosecutions, though originally well-justified, have been eclipsed by changing times. In the 1960s and 70s, the government indicted thousands of Vietnam draft resisters. President Carter's omnibus pardon of them helped bind up, and heal, the nation's wounds from the Vietnam era. President Washington's pardon of the Whiskey Rebellion conspirators, and even President Ford's pardon of Richard Nixon, served much the same function.

Pardons have also served as a reasonable reward for individuals whose public service or private virtue has come to overshadow a transgression in their pasts — demonstrating that the transgression was an aberration, not part of a pattern.

In addition, pardons can serve as a last safeguard for cases in which belatedly-discovered evidence casts doubt on the guilt of an accused, but normal judicial remedies prove fruitless.

The best test of Clinton's pardons is whether they fit within the important historical tradition in which he attempted, in his Op Ed, to place himself. The answer is that some do, but some do not — and the controversial Marc Rich pardon is one that certainly does not.

But several other Clinton pardons cannot possibly be squared with the high purposes Clinton invoked in his Op Ed. Consider the pardon of Marc Rich.

Rich has been a fugitive from American justice for 18 years. While the wisdom of the indictment against Rich may be debated, there is no evidence that it was politically motivated. Nor is there evidence that it was meritless.

Rich's attorneys claim he is a victim of overeager prosecutors, who based the charges against him on a strained interpretation of complex corporate laws. But these claims have never been tested in court. Indeed, thanks to Rich's flight abroad, they represent little more than the expensive musings of Rich's army of well-connected defense attorneys.

Finally, the Rich pardon cannot be said to serve some larger national purpose. On the contrary, it has defeated an important national ideal: ensuring equal justice for rich and poor alike.

Nor is Rich's pardon an isolated instance. In his last days in office, for example, Clinton shortened the prison sentences of four members of the New Square Hasidic community, the support of which Hillary Clinton successfully courted during her Senate race. The four New Square men had been convicted of bilking U.S. taxpayers out of tens of millions of dollars.

No one argued these men were innocent. And it would take a lot of chutzpah to argue that the sentences for white-collar criminals are too harsh, when blue-collar defendants serve long terms for relatively minor drugs offenses. So what higher moral value could possibly justify cutting these prison terms? The answer is: None.

The Dangers of Undermining the Pardon Tradition

The point here is simple. Clinton's last-day pardon orgy is so distressing precisely because pardons historically have served such significant purposes. The Constitution, as Clinton noted in his Op Ed defense of his actions, makes the pardon power a matter of unfettered presidential discretion. But there is no greater enemy to the future exercise of wise discretion than the abuse of discretionary powers.

Clinton's pardons destroy the high standards of the past, and set the bar low for the future. In a worst case scenario, they could lead to a Constitutional amendment limiting a power many Presidents have used for wise and just ends.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, of which the most recent is Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.