As term ends, Bush faces historic pardon choice

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON — The president’s power to pardon is one provision in the Constitution that some members of Congress find unsettling, especially at the end of a president’s term.

Not surprising since Congress has no power to stop or repeal a presidential pardon.

But since pardon controversies usually erupt only every four or eight years, those who want to curb the pardon power by amending the Constitution never have had enough momentum to do so.

Article II, section 2 of the Constitution says the president “shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

If President George W. Bush were to issue pardons of former Attorney General Alberto Gonzales, Vice President Dick Cheney’s former chief of staff Lewis “Scooter” Libby, or others, would the Democratic-controlled Congress pass a constitutional amendment to limit presidents' pardon power?

Probably not.

James Pfiffner, a presidential scholar at the School of Public Policy at George Mason University said, “I see no likelihood that the Constitution would be amended to limit the pardon power. It is just too difficult to amend the Constitution.”

The debates over pardons at the end of presidents’ terms tend to be quickly forgotten.

President Bill Clinton’s final day pardons of fugitive commodities dealer Marc Rich and others were front-page news for several weeks after Clinton left office, but Congress and the news media soon shifted their sights to other topics.

Reputation a deterrent to bad pardons?
With no way for Congress to stop a president’s pardons, pardon critics fall back on arguments that a president ought to worry about his reputation before handing out dubious pardons.

The New York Times editorial page, never a Bush supporter, said last week that “if he wants to try to reclaim his reputation,” he should not issue pardons to administration alumni such as Libby, whose sentence Bush has already commuted.

But as Bill Clinton proved, “legacy” and historical reputation are changeable concepts.

In 1974, as a congressional candidate, Clinton railed against President Gerald Ford’s pardon of his predecessor Richard Nixon.

White House tapes made clear Nixon had worked to block a criminal investigation of the 1972 break-in at Democratic National Committee headquarters at the Watergate in Washington.

Nixon was forced to resign. His successor, Ford, then pardoned him for any Watergate-related crimes he might have committed.

An outraged Congress briefly considered action: Sen. Walter Mondale, D-Minn., proposed a constitutional amendment allowing a pardon to be rescinded by a two-thirds votes of both House and Senate.

“This pardon has again opened the wounds of Watergate,” Clinton told voters in 1974. “It has undermined respect for law and order… It has tormented the families of those already in prison for the administration’s political crimes.”

Clinton praises Ford for Nixon pardon
Twenty-five years later, as president, Clinton awarded the Presidential Medal of Freedom to Ford and praised him for giving Nixon the pardon.

The current version of the end-of-presidency pardon speculation heated up this week as Weekly Standard editor William Kristol wrote that the president should consider pardoning “everyone who served in good faith in the war on terror, but whose deeds may now be susceptible to demagogic or politically inspired prosecution by some seeking to score political points.”

He said, “The CIA agents who waterboarded Khalid Sheikh Mohammed, and the NSA officials who listened in on phone calls from Pakistan, should not have to worry about legal bills or public defamation.”

But Sen. Russ Feingold, D-Wisc., a harsh Bush critic, said last month, “If President Bush were to pardon key individuals involved in the misdeeds of his administration, from warrantless wiretapping to torture to the firing of U.S. attorneys for political reasons, the courts would be unable to address criminality, or pass judgment on the legality of some of the president's worst abuses.”

Rep. Jerrold Nadler, D-N.Y., another Bush foe, has offered a non-binding resolution saying it would be “a dangerous abuse of the pardon power” for Bush to pardon officials of his administration.

Nadler wants attorney general-designate Eric Holder, once he takes office next year, to appoint an independent counsel to investigate “illegal acts by senior officials of the administration of President George W. Bush.”

But Nadler’s suggestion is an illustration of the check-mating power of the pardon. Even if Holder did appoint an independent counsel, that prosecutor would have no one to prosecute if they’d already been pardoned.

(Holder, as deputy attorney general under Clinton, played a role in the pardons of Rich and others, a topic he's likely to be questioned about during his confirmation hearings.)

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