At the White House’s Whim

Tom Bingham

The practice of recent American presidents, in absolving criminal defendants and suspects from the penal consequences of their offending and remitting sentences, has been viewed by many British and some American observers with a mixture of incredulity and bewilderment. One thinks, for example, of the pardon granted by President Ford to his predecessor in 1974:

Now, therefore, I, Gerald R. Ford, President of the United States . . . do grant a full, free, and absolute pardon unto Richard Nixon for all offences against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.

Nixon himself had controversially pardoned Jimmy Hoffa, the former president of the Teamsters Union, who had been convicted of jury tampering, on condition that he stay out of union politics; and Ford was succeeded by Jimmy Carter, who commuted the 20-year sentence on Gordon Liddy, one of the Watergate conspirators, after four years and three months because of a perceived disparity between his sentence and that imposed on others.

Carter’s successor, Ronald Reagan, pardoned two FBI officers who had authorised illegal surveillance of radicals, while their appeals were pending, and exercised his pardon power a few days before leaving office on behalf of ten individuals, including the owner of the New York Yankees, convicted of illegally funnelling $100,000 to Nixon’s re-election campaign in 1972. He did not pardon those convicted of or charged with involvement in the Iran-Contra affair. That fell to his successor, the first President Bush, who granted six pardons: one of the beneficiaries had already been convicted, three had pleaded guilty and two, including the former defense secretary, Caspar Weinberger, were awaiting trial. The president thereby made sure that he could not himself be called on to testify at a trial.

Until his last months in office, President Clinton was more parsimonious in granting pardons than any president since John Adams two hundred years earlier. But he made up for this at the end when he cast aside the ordinary process for handling federal clemency applications and, in the words of the American lawyer Margaret Colgate, ‘enjoyed a final unencumbered opportunity to reward friends, bless strangers and settle old scores’. On his last day in office, 20 January 2001, Clinton signed pardon warrants for 141 individuals and commuted the sentences of another 36, including one under sentence of death. A number of those who obtained pardons or commutations had not applied to the Department of Justice for clemency.

On 2 July 2007, George W. Bush commuted the prison sentence on Lewis ‘Scooter’ Libby, a former chief of staff to Vice-President Cheney. Libby had been convicted the previous March of perjury and obstruction of justice in connection with the leak of the CIA agent Valerie Plame’s identity. He had been sentenced to 30 months’ imprisonment, two years’ supervised release and a fine of $250,000. The president commuted the prison term imposed by the sentence so that it would expire immediately, leaving intact the other components of the sentence. Libby did not apply for a further pardon. Bush granted fewer than half as many pardons and commutations as his predecessors Reagan and Clinton. But as he neared the end of his second term some two thousand applications for clemency awaited his decision. Among the applicants, it is reported, were Conrad Black; Michael Milken, of junk bond fame; John Walker Lindh, the ‘American Taliban’; a former Republican congressman jailed for accepting bribes; and a former Democratic governor of Louisiana, convicted on racketeering charges. They were doomed to disappointment. But just before Christmas 2008, the president did grant 19 pardons, one of them to Isaac Toussie, a Brooklyn real-estate developer convicted of mail fraud and making false statements to the US Department of Housing and Urban Development. He had defrauded hundreds of low-income homebuyers, and had served his sentence. But his joy was short-lived because the pardon was rescinded the next day. The president had not, it was said, appreciated the nature and extent of Toussie’s previous criminal offending. Nor had he known of substantial donations made by Toussie’s father and other members of his family to John McCain’s presidential campaign a few months earlier, which (it was said) ‘might create an appearance of impropriety’. These might indeed be seen as very good reasons for not granting a pardon: it is less clear what reason there can ever have been for granting it.

During the Nixon administration, and again during that of the first Bush, serious consideration was given to the question whether the president could lawfully pardon himself. In the event, neither president adopted this course, but not (it would seem) on advice that he lacked the power to do so.

This string of cases prompts two questions, both easily answered. First, what is the source of the presidential power of pardon? The answer is: Article II, Section 2, Clause 1 of the US Constitution, which provides that the president ‘shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment’.

The second question is: what is the provenance of this provision? The answer: the law of England. Authority has made this clear from the earliest days. Thus in 1833, in the first case to reach the Supreme Court on the scope of the clause, Chief Justice Marshall, for a unanimous court, said:

As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.

In a later case of 1855, the Supreme Court (despite some dissentients) was even more emphatic:

Time out of mind, in the earliest books of the English law, every pardon has its particular denomination. They are general, special or particular, conditional or absolute, statutory, not necessary in some cases, and in some grantable of course . . . We might mention other legal incidents of a pardon, but those mentioned are enough to illustrate the subject of pardon, and the extent or meaning of the president’s power to grant reprieves and pardons. It meant that the power was to be used according to law; that is, as it had been used in England, and these States when they were colonies; not because it was a prerogative power, but as incidents of the power to pardon, particularly when the circumstances of any case disclosed such uncertainties as made it doubtful if there should have been a conviction of the criminal, or when they are such as to show that there might be a mitigation of the punishment without lessening the obligation of vindicatory justice . . . the language used in the constitution, conferring the power to grant reprieves and pardons, must be construed with reference to its meaning at the time of its adoption. At the time of our separation from Great Britain, that power had been exercised by the king, as the chief executive . . . Hence, when the words to grant pardons were used in the Constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies.

There is only one express departure from the English model: whereas the Act of Settlement 1701 precluded the grant of a pardon before impeachment but permitted such a grant afterwards, the US Constitution precluded the grant of a pardon in any case of impeachment.

If the American provision is based on an English precedent, and permits a president to pardon himself, should we understand the same rule to apply here? If Tony Blair had been charged with selling honours for cash, could he (or John Reid, or Jacqui Smith, or whoever was home secretary at the time) have procured the grant of a pardon in the name of the queen? I can’t think any British lawyer would give an affirmative answer to the question. One ground for rejecting it is technical. The royal prerogative of mercy is a prerogative power which cannot be enlarged and whose existence must be examined on historical principles. Historically, the king could never have pardoned himself because, being constitutionally incapable of doing wrong, and thus of committing a crime, the occasion for such a pardon could never have arisen. But there are more substantial reasons for thinking that our law has moved forward since 1787, even if, in this respect, the law of the United States has not. A little background is inescapable.

Recognition of an extrajudicial power to pardon or commute sentences has been a feature of every, or almost every, society since ancient times. It may indeed be said that the more primitive and unsophisticated a society’s criminal law and practice, the greater the need for an extrajudicial power to alleviate the injustices that will inevitably arise. This is amply demonstrated in our own early history. Killing was a capital felony unless carried out in execution of a lawful sentence of a court or in the arrest of an outlaw or manifest thief or (a statutory addition) involved the killing of a trespasser by a forester or parker in the course of attempting to make an arrest. It was not in these early days a ground of defence that the killing was the result of misadventure or accident, or that the killing was in self-defence, or that the killer was of unsound mind at the time of the killing, or that the killer was a child. The examples quoted in the books of pardons granted to child killers before formal recognition of an age of criminal responsibility are particularly telling. In 1249, a four-year-old child, Katherine Passcavant, was imprisoned and not executed: in opening a door she had accidentally pushed a younger child into a vessel of hot water with fatal results. During the reign of Edward I, a pardon was extended to a child under seven, even though, by then, it was laid down that a child under seven could not be convicted of felony. Much later, in 1748, William York, aged ten, murdered a child of five and buried her in a dunghill. ‘When he was examined, he showed very little concern, and appeared easy and cheerful . . . The boy was found guilty and sentenced to death; but he was respited from time to time on account of his tender years, and at length pardoned.’

In cases such as these few could doubt the benefit of a power to mitigate the severity of an inflexible and undiscriminatory system. Understandable, too, are the frequent instances in which a penalty was remitted at the entreaty of the victim (an argument still relied on in mitigation), and, in an age of faith, the practice of remitting the ultimate penalty in cases where the process of execution miscarried. It was a recognised practice to grant immunity to one offender as an inducement to testify against his accomplices.

It would be misleading to suggest that all pardons and commutations in former times were calculated to further the interests of justice. They were regularly sold, were obtainable by private solicitation and pressure, and in times of emergency were used to man the armed services, particularly the navy. Pardons were also granted by authorities other than the Crown, a practice ended by statute in 1536, when Henry VIII obtained sole and exclusive authority ‘to pardon or remit any treasons, murders, manslaughters or any kinds of felonies’.

By the time of the American Revolution, four features of the royal prerogative of pardon deserve mention. First, the reigning monarch, George III, exercised the power personally and conscientiously. He is recorded as writing in 1766:

I have examined the case of the unhappy Convicts lately transmitted from Scotland; as to the Young Man I am very willing to Shew mercy, as to the Woman, I cannot see it quite in the same light, but think it may not be improper to send to the proper Office in Scotland for a Report with regard to the Woman, as I am ever desirous to be perfectly convinc’d there is no room for mitigating the rigour of the Law, before it takes its course.

Second, while the royal power of pardon was very wide, it was not unlimited. A pardon could not be pleaded in bar of impeachment, and the Habeas Corpus Amendment Act 1679 had earlier imposed a further restriction: when Parliament in that Act prohibited the sending of prisoners to places where the writ of habeas corpus did not run – a provision which made sure there could henceforth be no British Guantánamo – it also provided that no pardon could be relied on to defeat a charge under the Act. It was further accepted that a pardon could not be granted to defeat the private right of a third party. Thus, as Holdsworth puts it in his History of English Law, ‘he could not, by the exercise of his power to pardon, prejudice the right of an injured person to prosecute a criminal appeal; nor could he pardon the commission of a nuisance; nor could he grant a market which would injure the market already granted to another.’

Third, it was accepted that a commutation of sentence could be offered subject to a condition which the defendant was free to accept or not. The most usual condition was that the defendant be transported overseas and not executed, a condition to which most defendants, unsurprisingly, consented. This was a practice adopted before transportation was recognised by statute as an available sentence in 1717. More unusually, a condemned man was pardoned in 1730 on condition that he allow one Cheselden, a celebrated surgeon, to perforate his eardrum in order to study the effect on his hearing.

Fourth, it was accepted that even a full pardon did not do more than free a guilty person from the legal consequences of his illegal act. It did not give rise to a fiction that the person had committed no offence. As Chief Justice Vaughan put it in 1674: ‘A pardon frees from the punishment due for a thing unlawfully done.’

Consistent with the authority I’ve already cited, the Americans after independence interpreted Article II, Section 2 of the Constitution very much in accord with English principles. It was held that a pardon exempted from punishment but did not expunge guilt, and that acceptance of a pardon carried with it an imputation of guilt. It was established that the president could commute a sentence of death on condition that the defendant served a sentence of life imprisonment.

But perhaps most significant for present purposes is the emphasis laid on the breadth of the power and on the unfettered nature of the president’s discretion. Thus in 1866 the Supreme Court declared:

The power thus conferred is unlimited, with the exception stated [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.

It was described in 1871 as a power granted ‘without limit’. Later, in 1925, Chief Justice Taft spoke for a unanimous court in a case of criminal contempt when he said:

Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it.

The chief justice went on to ask:

Is it unreasonable to provide for the possibility that the personal element may sometimes enter into a summary judgment pronounced by a judge who thinks his authority is flouted or denied? May it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favour of a person convicted by a judge without a jury as in favour of one convicted in a jury trial?

In the most recent case to have reached the Supreme Court on this subject, this theme was repeated. In The Federalist Alexander Hamilton said that ‘the benign prerogative of pardoning should be as little as possible fettered or embarrassed.’ This statement was cited with approval in a majority opinion delivered by Chief Justice Burger in 1974. He went on:

A fair reading of the history of the English pardoning power, from which our Art. II, §2, cl. 1 derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by §2, cl. 1, was to allow plenary authority in the president to ‘forgive’ the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable.

Reflecting this authority, W.F. Duker has written that ‘the president is free to exercise the pardoning power for good reasons, bad reasons or no reason at all.’ He went on to point out that ‘alone among the powers enumerated in the Constitution, the power to pardon proceeds unfettered . . . The only “rule” governing the use of the power is that the president shall not exercise it against the public interest, though he alone is given the discretion to define the public interest.’

In the cases I have mentioned, presidents have not included any reasons in their formal grants of pardon or commutation. But Ford, explaining his pardon of Nixon at the time, stated that ‘the tranquillity to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former president of the United States.’ When the lawfulness of this pardon was challenged in the US District Court (in, so far as I know, the only legal challenge to a presidential pardon) the court held that the pardon was ‘a prudent public policy judgment’ that was within both the letter and the spirit of the pardoning power. Carter’s pardon of Gordon Liddy was explained by an associate White House counsel as ‘a clear case of unfair disparity’ when compared with the other Watergate conspirators. Reagan considered that generosity was due to the convicted FBI agents as ‘two men who acted on high principle to bring an end to the terrorism that was threatening our nation.’ George H.W. Bush explained his clemency to the Iran-Contra defendants on the ground that they were ‘patriots’ with a ‘long and distinguished record of service to the country’ who had been caught up in ‘the criminalisation of policy differences’. George W. Bush considered Libby’s 30-month prison term ‘excessive’ for ‘a first-time offender with years of exceptional public service’.

Given all the relevant changes made in the law of England and Wales over the last two hundred years, I’m prompted to ask what need there now is in this country for exercise of the prerogative power of pardon or mercy. A somewhat similar question was put in a comprehensive survey of the pardon power, both by the president and state governors, commissioned by the attorney-general of the United States in 1939. Under the heading ‘Why pardon?’ the issue was neatly put:

A man has been adjudged guilty of crime. He was given a fair trial. He had full notice of the charge against him and an opportunity to present his defence. He had the benefit of counsel. Everything that could be said or done in his defence was said and done. A jury of 12 men unanimously found him guilty beyond all reasonable doubt. He had opportunity to ask for a new trial if there was any reason to believe the verdict was not sustained by the evidence. He had a right to appeal to a higher court. If he felt his federal constitutional rights had been impaired he had the right to appeal to the Supreme Court of the United States.

Why should he now be allowed to appeal from this judgment to the executive, by asking for a pardon?

  Why should the executive have this power to set at naught any judgment of the courts, no matter how fairly and painstakingly arrived at?

These are very pertinent questions.

The authors of the survey advanced a number of reasons in favour of the presidential power of pardon. The first is as ‘a means to restore the just law’. It is suggested that ‘the technique of our law is such that it cannot accommodate itself to all the perplexities which occur daily in real life.’ But a well-devised criminal law will discriminate between conduct which is proscribed as criminal and conduct which is not, and the court should have discretion to match the penalty to the offence. It cannot properly fall to an unaccountable executive to correct deficiencies in criminal law and practice. A second suggested justification is to meet technical violations of the law. But such violations can be addressed by applications for abuse of process and a robust exercise of the court’s power to order an absolute discharge. Then it is said that punishment may do more harm than good. That is a matter for judgment by two independent authorities, the prosecuting authority and the court; it is not aptly judged by a political authority which may well be influenced by considerations other than those of justice. A further justification is in favour of pardon on the ground of innocence. But neither in Britain nor in America does the grant of a pardon establish innocence. The only way a verdict of guilty can be expunged is by quashing it, whether on appeal or subsequently, and, at least in this country, procedures exist for that purpose.

Pardon is next justified as a means of correcting miscarriages of justice. It is, however, for the courts and not the executive to correct miscarriages of justice, as British legislation recognises. Pardon is then justified as a means of recognising a prisoner’s reformation. But this is the function of parole. It is an argument against long sentences imposed without the possibility of parole, but not an argument for giving an unfettered dispensing power to the executive. Reference is made to cases in which prosecutions have been initiated, long after the offence, of persons who (one infers) have led blameless lives in the meantime. Sir James Stephen cites a case in which a man was prosecuted in 1863 for stealing a leaf from a parish register in 1803. But he goes on to record that the grand jury threw out the bill, as one would hope; nowadays, an application alleging abuse of process would be made.

A more persuasive ground of justification is that based on a change in exterior circumstances. There have been many occasions in British and American history in which it has been judged desirable, in the interests of social harmony and reconciliation, to offer conditional forgiveness to those convicted of certain crimes: as after the 1745 rebellion in this country, during and after the American Civil War, and, most recently, in relation to the Troubles in Northern Ireland. There is, I would readily accept, a role for such amnesties. But they should be granted on terms carefully considered and defined in statute, as was done in Northern Ireland, and not at the undirected discretion of the executive. Lastly, pardon is justified as a means of inducing criminals to testify against their accomplices. It is sometimes necessary or expedient to procure such testimony. But there is no need for a pardon: all that is needed is a clear undertaking by the prosecuting authority not to prosecute, which the courts will enforce.

I see very little scope for the royal prerogative of mercy in Britain today. Even the early release of prisoners to relieve problems of prison overcrowding is governed by statute, as it should be. The contrast between our law and that of the United States, as they now respectively stand, appears to be stark. The contrast prompts three comparative reflections.

First, the American approach to the presidential pardon power, as expounded even in the most recent cases, highlights the tenacity with which the courts have adhered to an originalist view of the Constitution. There is no trace in this context of the ‘living instrument’, ‘living tree’ approach to constitutional interpretation, allowing for organic development over time. Clause 1 of Section 2 of Article II of the Constitution means, subject to the impeachment variation, what the royal prerogative of pardon meant in England in 1787, and nothing less.

Second, the comparison highlights the literalness with which American lawyers tend to interpret their constitution. The view that the president can lawfully exercise the power to pardon himself depends on the absence, in the text, of anything to suggest that he may not. If, however, to revert to my earlier example, Blair had procured an exercise of the royal prerogative to pardon him for selling honours, the suggestion that this was a lawful exercise of power would be laughed out of court. So it would if the pardon had, formally, been procured by another minister. It was not suggested in M v. Home Office (1992) that the home secretary, if convicted and punished for contempt, could rely on the royal prerogative to pardon himself.

Third, and perhaps anomalously, the British law on this subject would seem to be much closer than the American to the ideals that inspired the American Revolution. The colonists then rejected what they saw as the overweening, unaccountable, all but absolute, power of the English king, replacing it with a republican democracy governed by law. Yet whereas here the royal prerogative of pardon has virtually withered away, the presidential power survives apparently intact. A president may no doubt be subject to political constraints, and he is potentially subject to impeachment, a fate which befell Governor Walton of Oklahoma, guilty of wrongful and corrupt misuse of the pardon power, in 1923. But the risk of impeachment must depend on the political composition of the legislature; an exercise of the pardon power may be abusive but nonetheless politically popular; and impeachment in the United States involves removal and disqualification from holding office, somewhat ineffective deterrents to a president nearing the end of his term. The anomaly remains that an unfettered power directly bearing on the administration of justice should be entrusted to the executive, even at the highest level, with no obligation to give reasons and, it would seem, no possibility of effective legal challenge.