Pardons With a Precedent

By Michael Powell
Washington Post Staff Writer
Monday, February 26, 2001; Page C01

A lame-duck president grants a slew of controversial pardons, eleventh-hour Get Out of Jail Free cards for the politically well-connected.

His pardon list includes: A former Cabinet official who could have been in a position to implicate the president himself in federal crimes. An assistant secretary of state who withheld information from Congress and a CIA official who lied to it. And a Pakistani who was caught smuggling $1.5 million worth of heroin into the United States and had 47 years left on his sentence.

Outrage billows. Editorials thunder. "The pardon," says a prominent prosecutor, "undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office . . . without consequences."

The president in question was George H. W. Bush.

On Christmas Eve 1992, Bush pardoned former defense secretary Caspar Weinberger, who had just been indicted for his role in the Iran-contra scandal, a conspiracy to sell arms illegally to Iran to free hostages and raise money for the Nicaraguan contras. He also pardoned former assistant secretary of state Elliott Abrams, Alan Fiers of the CIA and three others, all implicated in the Iran-contra scandal.

The firestorm is echoed by today's outcry over President Clinton's decision to pardon Marc Rich, a fugitive financier. Except that the stakes in the Iran-contra pardons arguably were higher.

"It went way beyond what is alleged in the Marc Rich case," says Tom Blanton, director of the National Security Archives at George Washington University. "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."

The storm enveloping Clinton's pardons has obscured two central facts: Presidential pardons often outrage Congress and the nation. And the power to pardon felons and commute sentences is a singular and most unusual instrument of state.

Few democratic heads of state possess such power. Indeed, few kings of England boasted such a broad and unchallenged writ. "The king at least had common-law limitations on his power," says P.S. Ruckman Jr., an assistant political science professor at Rock Valley College in Illinois, who has studied the presidential pardon power.

In its absolute power, the pardon offers a terrific window into the moral universe of a particular president. In the end, he is constrained only by his own sense of what is right.

For this reason, presidents often try to explain their reasoning. Bush portrayed himself as a healer, trying to save Weinberger, "a true American patriot," the humiliation of trial and possible conviction for knowingly violating the nation's laws.(Bush never explained his pardon of the Pakistani heroin dealer, a move opposed by federal prosecutors.) And Clinton has framed his pardon of Rich, who was accused of repeatedly violating federal laws and trade embargoes, as a matter of state diplomacy and personal compassion.

"You are always dealing with the peculiar sensibility of a given president," says Boston University historian Robert Dallek. "An act of compassion is cause enough for some presidents."

It has been so from the beginning of the republic.

President Washington on his final day in office pardoned David Blair, a rum smuggler. His reasons are not clear, though word filtered up through history that Blair's rum slid smoothly down the gullets of prominent drinkers.

John Adams took office next, and soon hurled many opponents into prison under the Alien and Sedition Laws. Then he sought to boost his reelection chances by pardoning them, an offer the prisoners couldn't refuse.

Adams's successor, Thomas Jefferson, wielded his pardon powers no less erratically, even trying to compel testimony in Aaron Burr's treason trial by preemptively pardoning a potential key witness. The intrusion nettled the jury, and Burr was acquitted.

James Madison pardoned a slave trader and pirate. And, according to the online resource LexisOne, Abraham Lincoln was so fond of pardons that Sen. Elihu Root wrote: "Secretary [of War] Stanton used to get out of patience with Lincoln because he was all the time pardoning men who ought to be shot."

Andrew Johnson pardoned Jefferson Davis, only to hear Davis repeatedly proclaim himself an unrepentant Confederate. Woodrow Wilson had some clamorous suffragists arrested outside the White House, a move that created so much sympathy for their cause that he later pardoned them.

Warren Harding pardoned Socialist Eugene Debs, convicted of sedition for criticizing the government during World War I, so he could go home for Christmas; the two men are reported to have later shared a few glasses of whiskey.

And Calvin Coolidge found himself involved in a strange case a few years later. A convicted bank robber, in Prof. Ruckman's telling, escaped from federal prison and killed a police officer in Connecticut. The state sought to execute him, but the killer claimed this violated his constitutional rights and demanded to first serve out his 25-year federal term. So Coolidge commuted the prisoner's federal sentence and Connecticut hanged him.

Presidents often attempt to set conditions on their pardons. Black nationalist Marcus Garvey was pardoned on condition that he leave the country. Another felon was pardoned providing he not carry a gun. Another agreed to give up drinking. William Howard Taft pardoned two prisoners after being advised that they were near death, only to watch one former felon live merrily on.

Six presidents pardoned felons who had attempted to assassinate one of their predecessors.

"If you said that some men could shoot up Congress with machine guns and that a later president would free them, most people would think you're crazy," says Ruckman. "But that's what Jimmy Carter did with the Puerto Rican nationalists who once assaulted Congress."

Perhaps the only certainty is that the pardon -- which substitutes one man's judgment for that of prosecutor, judge and jury -- will remain controversial. In the case of Iran-contra, Bush's pardons left stillborn a large and long investigation into an international conspiracy to subvert American laws. But the Democratic-controlled Congress decided not to investigate.

Republicans and some Democrats rumble louder today. Some vow to haul Clinton before Congress and force him to explain his pardons. Ruckman is not terribly impressed by the threat.

"Let's say you put him on the stand, and Clinton says, 'Well, I saw some overzealous prosecutions and I know what that's like so I pardoned them,' " Ruckman says. "Well, unless you can prove a bribe, guess what?

"Game's over."