Reinventing the President's Pardon Power

Abstract

The president's pardon power took center stage for the second time in this young century when, on July 2, 2007, President Bush commuted the prison sentence imposed on White House Aide I. Lewis "Scooter" Libby. 1 Libby, Vice President Cheney's former chief of staff, had been convicted the previous March of perjury and obstruction of justice in connection with the leak of CIA agent Valerie Wilson's identity, and sentenced to 30 months in prison. The President acted just a few hours after the court of appeals rejected Libby's request to remain free on bail while pursuing his appeal, bypassing entirely the Justice Department clemency review process. At the time, the President had commuted only three other prison sentences in more than six years in office, all grants to small-time drug dealers who had served many years in prison, and his overall pardoning record was far from generous. In explaining his action, the President said that he "respected" the jury's guilty verdict, but considered Libby's 30-month prison term "excessive" for "a first-time offender with years of exceptional public service." He added that Libby had otherwise been harshly punished by the damage to his reputation and suffering of his family, and by the fine and period of supervision left in place. 2 But by these standards, scores-perhaps hundreds-of people doing hard time in federal prison are also worthy of the President's mercy. The only thing that distinguishes Libby is his unique access to the Oval Office. Like the final Clinton grants six years before, the Libby commutation in context seemed to confirm the popular view of pardon as a personal prerogative of the president, a remnant of tribal kingship generally reserved for the well-heeled or wellconnected. How is it tolerable, in a democracy, for the president to be able to reach into the machinery of criminal justice to pluck out one of his close associates, particularly if ordinary people have no hope of similar favor? The answer is, it isn't. The president's constitutional pardon power was never supposed to be used the way it was in the Libby case, and in our country's history it rarely has been. 3 * United States Pardon Attorney, 1990-1997. My thanks to Rachel Barkow, Dan Kobil, and Marc Miller for their comments on an earlier version of this paper. 1 The term "pardon" refers both to the president's constitutional power under Article II § 2, and to a specific form of relief under that power, in modern times generally (though not always) a forgiveness after completion of sentence. "Commutation" is a form of clemency that reduces a prison sentence or converts a sentence to a less severe form. (Because President Bush's grant eliminated Libby's prison sentence in its entirety, it is technically styled a "remission.") "Clemency" is an umbrella term used to describe all forms of relief available under the pardon power.

The Office of the Pardon Attorney

“…They should talk about what they see as the president's goals for the clemency power and consider pardoning early and often. 54 By establishing a regular clemency process 55 and educating the public on the good that the clemency power can do, they can take the first steps to revitalize the pardon power for the Biden years and beyond.…”

Constitutional models on protecting the rule of law and the rights of convicted persons

“…Expressis verbis, the institution of pardon has not been adequately regulated in postcommunist Romania, the normative framework lacking unity and presenting the possibility of dysfunctions as a result of adopting contradictory solutions. This aspect was addressed in the Reason exposition of the Draft Law regarding pardoning and the procedure of granting pardon 8 , initiated by Member of Parliament Acsinte Gaspar, according to whom overstepping the legal framework with regard to the granting of pardons is a result of the fact that procedurally, that is regulated in a single decree from 1952 9 , which contained summary dispositions, inadequate for the current legislative and institutional framework. Therefore, until the promulgation of Law No.…”

The Abuse of Presidential Power of Pardon and the Need for Restraints

“…8 It exists to protect citizens against possible miscarriage of justice, occasioned by wrongful conviction and excessive punishment or where, in the interest of social and political stability and peaceful co-existence, it is necessary to show mercy. Nevertheless, it appears that in recent times, this power has, in practice, become a personal prerogative of the President, a remnant of tribal kingship generally reserved for the well-heeled or well-connected (Love, 2007).…”