A Royal Pardon?
by Carol V. Hamilton
The presidential pardon is a vestige of monarchy. During Henry VIII’ s reign, the monarch’s ability to pardon was officially approved by Parliament. Rulers could act according to the dictates of their own hearts. Against the advice of her counselors, Henry’s daughter, Eizabeth I, pardoned her suitor, Sir Robert Dudley, despite his treasonable behavior.
In his Commentaries Upon the Laws of England, William Blackstone traced the pardon back to “our Saxon ancestors.” Writing before the American Revolution, Blackstone doubted that a democracy could successfully exercise the power of the pardon. The constitutional monarch, unlike the leader of a democracy, existed in a realm beyond party politics. If such a leader could pardon, the common people would be unable to tell “whether a prisoner were discharged by his innocence, or obtained a pardon through favor.”
A pardon through favor. Blackstone’s words have a particular resonance as everyone wonders whether George W. Bush will pardon Scooter Libby. Some pundits have speculated that a pardon was promised to Libby before the trial began. Many believe that Bush will pardon Libby just before leaving office. Frank Rich thinks the pardon is inevitable.
President Bush has claimed to favor strict constructionists of the Constitution, so he should consider what the Founders intended when they conferred upon the president the power to pardon. Alexander Hamilton explained their reasoning in The Federalist #74:
“The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”
Hamilton and his colleagues probably never imagined the presidential pardon being used to rescue a high official in distress—a lawyer who had lied under oath and obstructed the course of an investigation. More likely, he and the other signers of the Constitution envisioned the presidential pardon being used on behalf of some desperate Jean Valjean. From government officials the Founders expected the utmost probity. They assumed that such people would care too much about their public reputations to violate their oaths of office.
The president would surely appreciate the gravity of his power to pardon, Hamilton wrote in #74, because:
“The reflection that the fate of a fellow-creature depended on his sole fiat would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance would beget equal circumspection, although of a different kind. “
The Constitutional Convention vested the authority to pardon in a single person because a group of people, Hamilton explained, “might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency.”
The language Hamilton used in #74 is all too relevant to our current scandal. It would certainly be injudicious, even unscrupulous, of Bush to pardon Libby. The very thought of doing so should inspire in him the dread of being accused of weakness or connivance. His critics might accuse him of lacking the strength to oppose Cheney’s wishes. They might also suspect him of conniving to protect an administration that broke the law in order to punish its opponents.
Because the Convention had decided that the presidential pardon should not be “fettered,” Hamilton does not give many specific examples of its use. He does, however, give one, and it is not at all applicable to a case like Scooter Libby’s. A few sentences after a reference to Shays’s Rebellion, Hamilton writes:
“The principal argument for reposing the power of pardoning in this case [sedition] is this: in seasons of insurrection or rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.“
Presidents George Washington and John Adams used their power to pardon in exactly such circumstances—Washington after the Whisky Rebellion and Adams after the Fries Rebellion. (The judge who sentenced the Fries rebels to death was Samuel Chase, whose war profiteering is discussed in another of my op-eds.)
As Governor of Texas, George W. Bush showed no mercy to prisoners on death row, not even when vigorously lobbied to do so by his supporters. As President of the United States, he has been stingy with pardons. If he does pardon Libby, he will not be extending mercy to the unfortunate, as the Founders intended.
Instead he will be demonstrating a suspicious connivance with a renegade and vengeful vice-president.