pardoning powerIn many countries, politicians have very good reason to hold onto power as if their lives depended on it. Sometimes, as with various brutal dictators, this is literally true; being deposed may well mean being decapitated. Other times, well, even elected leaders may have reasons to want to avoid an early return to civilian life. In a word, what politicians have and often do not want to surrender is immunity. Have you engaged is massive financial corruption? Stolen from the public purse? Cavorted with underage prostitutes? If you are, say, the Prime Minister of Italy, your best defense against criminal prosecution (and even civil liability) may be to simply hold onto power. The reason is simple: In a number of countries—including advanced social democracies like Italy—the law provides immunity to high political figures. In other countries, especially in parts of the world where claims to being democratic are taken less seriously, the immunity covers a much broader and lower range of public officials.

Officially at least, the United States has never allowed for this particular form of class-based inequality before the law. In part, no doubt, Americans’ aversion to political immunity arises from the fact that ours is a democratic polity; we have rejected the idea that some of us are “too important” to answer for their actions. Unlike European (and many third world) nations with their well-ensconced, often hereditary elites, and unlike hyper-politicized socialist states where ideology and political power rule, Americans historically have insisted on actually living out their profession that each of us is as good as the other in the sight of both God and the law. Thus, for example, when Bill Clinton tried to get out of answering Paula Jones’ charges of sexual harassment/assault, the courts swatted down his self-serving claims to be “too busy serving the public” to answer questions regarding his actions. In effect, the court said “We will do our best to work around your schedule, Mr. President, but that does not mean giving you a ‘pass’ until you are done ‘being President.’”

This is not to say that justice is always done to the rich and powerful as it is done to the rest of us. Bill Clinton did end up paying a fine and losing his license to practice law as the price for some of his many misdeeds. But that did not stop him from staying influential and becoming very, very rich. Moreover, our system gives the President one very powerful tool in avoiding the process of law: The Presidential pardon. One way of avoiding responsibility for one’s actions is simply to find a way to hand over power to someone who will “have your back” by pardoning you before the wheels of justice grind too far. President Ford continues to be accused on occasion of essentially buying the presidency by agreeing to pardon Richard Nixon in exchange for being appointed Vice President and/or securing Nixon’s resignation.

Whatever one makes of Ford’s pardon, it seems clear that it is possible for Presidents to abuse the pardon power. The most egregious case in point: Bill Clinton pardoned 140 people on his final day in office, including several who had made (directly or indirectly) large contributions to Democratic campaigns and Clinton-related persons and organizations including his Presidential library and relatives. Most outrageous was Mr. Clinton’s pardon of long-term fugitive Marc Rich, a notorious merchant to dictators straight off the FBI’s Ten Most Wanted List. Ever since, Rich (now deceased) and his criminal associates have pushed 7- and 8-figure sums into the Clinton enterprises.*

We should not allow Mr. Clinton’s abuse of the pardoning power to make us lose sight of how important it is. There must be a place for mercy in every political system. That place is not in our courts of law, which are charged with defending the law itself and, through it, the freedom and security of the people. Historically, the one to pardon has been the chief executive—whether the President, the governor, or the king. Conscience is to rule, and to be checked by the possibility of public opprobrium, with any potential consequences derived therefrom. To relegate the job of pardoning to Congress or some committee would be to diffuse responsibility for an action that by its nature rests on morally informed judgment, for which responsibility should be clearly fixed. What made the Clinton pardons so execrable was their self-interested nature. Marc Rich did nothing to deserve or even seek mercy. Indeed, it seems obvious he did not receive mercy, but rather a return on his financial investment in Clinton, Inc.

We do not know what President Obama’s “mercy” list will look like. One assumes he will follow Mr. Clinton in pardoning various violent radicals. Depending on the outcome of the election, his list also may well include one or more Clintons. Those who wonder whether Mr. Obama, hardly a model of selfless conduct, would see sufficient advantage for himself in such a move, are referred to the recent discovery that he knew full well about Mrs. Clinton’s use of a private email server long before he has publicly claimed.

There is no “problem” with the pardoning power. And it is clear that the United States has, since its inception, made the right choice in refusing to grant immunity to political figures on account of their office. But, as the Framers of our Constitution well knew, no mere political mechanism can fully substitute for the lack of public virtue—either in the public officer or in the public that must hold that officer to account for his or her actions. Only a people that demands respect for law among its rulers will continue to be ruled by law rather than the will to power. Let us hope there is enough virtue left in the American people to retain something of the rule of law even at this late date.

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*A useful summary can be found here.

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