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Esta página no está disponible en español. Presidential Studies QuarterlyThe Law: When Presidential Power Backfires: Clinton's Use Of Clemency; The FALNLouis Fisher
September 1, 2002 Page 586 Although President Bill Clinton possessed exclusive authority to exercise the power over pardons and clemencies, his use of that authority greatly damaged his presidency. By circumventing established procedures within the D OJ (as he was free to do), he simultaneously maximized the freedom to do what he wanted and maximized the risk ofpolitical and legal error. The consequences of his actions in the Marc Rich pardon are still being felt in the courts. A grand jury in New York is looking into the conduct offive attorneys who, over a period of two decades, gave assistance to Rich. Future presidents will look upon Clinton's understanding and use ofthe pardon power as something to avoid. The Constitution generally requires Congress and the president to reach a consensus through the regular legislative process. However, President Bill Clinton will be remembered not for what he did with Congress but what he did without it. On a broad array of issues, he acted independently through prerogatives given him by express and implied powers (removals, vetoes, recess appointments, executive orders, proclamations, and pardons) and through prerogatives not given him (taking the country to war). His achievements through these instruments of power overshadowed anything he tried to do by submitting legislation. What emerges most clearly in the Clinton record are his unilateral actions. Oddly, it was the exercise of presidential prerogatives-with no possible interference by Congress or the judiciary-- that inflicted the most damage to Clinton's presidency. The Pardon Power Although constitutional powers in the United States are typically shared-as with appointments, treaties, and war-the president's power over pardons is exclusive. Article II of the Constitution gives the president the power to grant "Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." In Federalist 74, Alexander Hamilton emphasized that "humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed." Without that discretion, "justice would wear a countenance too sanguinely and cruel." There are two express restrictions on the president. The pardon power applies to offenses against the federal government (not against the states and localities), and the president may not use the power to countermand a legislative decision to impeach and remove. As Justice Joseph Story (1987) noted, the exception for cases of impeachment takes from the president every temptation to abuse it in cases of political and official offences by persons in the public service. The power of impeachment will generally be applied to persons holding high offices under the government; and it is of great consequence, that the president should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, if they should deserve it. (P. 551) There is also an implied restriction on the pardon power. Presidents cannot use the pardon power to compensate individuals for what has been done or suffered; nor can they draw money from the Treasury Department for general amnesties, except as expressly authorized by an act of Congress.1 The power of the purse belongs to Congress. On the other hand, certain statutory provisions have been struck down by the Supreme Court as invalid interferences with the pardon power.2 When a proviso in an appropriations statute attempts to control the president's power to pardon, as well as prescribe for the judiciary the effect of a pardon, the statutory provision is invalid.3 Finally, presidential abuse of the pardon power could conceivably constitute an impeachable offense or lead to restrictive rulings in the courts (Adler 1989, 209-35). Pardons and clemencies offered in return for presidential gain might fall in the category of bribery, and some conditions attached to a pardon could be found by the courts to be unconstitutional, such as conditions that limit First Amendment rights or other core constitutional freedoms. The power of pardon may take a variety of forms: full pardon, conditional pardon, clemency for a class ofpeople (amnesty), commutation (reducing a sentence), and remission of fines and forfeitures (Humbert 1941, 22). Through its appropriations and taxing powers, Congress may also remit fines, penalties, and forfeitures. Congress, with the support of the Supreme Court and the Department ofjustice (DOJ), has vested that discretion in the secretary of the treasury and other executive officials.' Congress may also legislate a general pardon or amnesty by repealing a law that had imposed criminal liability. Congress derives this power not by sharing the president's pardon power but through its power to legislate and to repeal legislation (Humbert 1941, 43-45). On September 8, 1974, President Gerald Ford granted a full pardon "for all offenses against the United States which Richard Nixon has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974." Some members of Congress thought that Nixon might have made a deal with Ford when nominating him to be vice president. If Nixon had conditioned the nomination on the promise of a pardon, or conditioned his own resignation on a pardon, the House might have charged Ford with accepting a bribe and impeached him. To allay such concerns, Ford took the extraordinary step of appearing before the House Judiciary Committee to explain the basis for his decision (U.S. House 1974, 87-158). To some lawmakers, it seemed improper for Ford to grant a pardon before formal charges had been lodged and without a formal admission of guilt from Nixon. It is established, however, that a pardon may be granted prior to a conviction and even before indictment.5 Nevertheless, it is risky to invoke the power prior to trial and condemnation. Without all of the facts produced through the normal trial procedure, a president may inadvertently grant a pardon for offenses that have not yet come to light.6 DOJ Regulations DOJ regulations spell out procedures for clemency. A person seeking executive clemency "shall execute a formal petition" (28 C.F.R. sec 1.1.). The pardon attorney in the DOJ "shall submit all recommendations in clemency cases through the Associate Attorney General," who "shall exercise such discretion and authority as is appropriate and necessary for the handling and transmittal of such recommendations to the President" (sec 0.36). The attorney general "shall review each petition and all pertinent information developed by the investigation and shall determine whether the request for clemency is of sufficient merit to warrant favorable action by the President." Moreover, the attorney general "shall report in writing his or her recommendations to the President, stating whether in his or her judgment the President should grant or deny the petition" (sec 1.6[b]). When the pardon attorney receives a petition for clemency, the office reviews the petition to ensure that the applicant is eligible to apply. If eligibility is established, the office contacts the warden at the federal prison where the inmate is held, requesting copies of the judgment of conviction, the presentence report, and the most recent prison progress report. The presentence report provides an account of the crime and a description of the defendant's criminal history. The progress report describes the prisoner's adjustment to incarceration and disciplinary history while in prison. The pardon attorney can also contact the U.S. attorney's office that prosecuted the case and the sentencing judge. A report of approximately five hundred words is prepared for the use of the deputy attorney general's office, the attorney general, and the White House counsel (U.S. Senate 1999, 100-2). These regulations serve a purpose, part of which is to protect the president from making legal or political blunders because he lacks adequate information. Without close review by professionals in the DOJ, the president can be easily blindsided. DOJ regulations are advisory on the president. They do not bind in any way his exercise of constitutional power. In both the clemency decision in 1999 for Puerto Rican terrorists and in his final day in office on January 20, 2001, Clinton ignored these DOJ guidelines. Margaret Love, pardon attorney from 1990 to 1997, testified before a House subcommittee in 2001 that many of the concerns raised about Clinton's final pardons "are directly attributable" to his decision not to seek the advice of the attorney general. She noted that "the irregularity and infrequency" with which Clinton acted on pardon applications "was calculated to invite public suspicion about the bona fides of even his most unexceptionable grants." The Clinton administration's "short-sighted and ill-advised" decision to abandon DOJ assistance "led directly to the reported free-for-all at the end of his term, and the resultant appearance of cronyism and influence peddling" (U.S. House 2001, 30). FALN Clemency Clinton's willingness to circumvent the DOJ on the pardon process was foreshadowed by his offer of clemency on August 11, 1999, to sixteen members of a Puerto Rican terrorist group, the FALN (Armed Forces of Puerto Rican National Liberation). Fourteen accepted the conditions attached to the clemency (such as renouncing violence). They had been convicted and imprisoned for seditious conspiracy in planting more than 130 bombs in public places in the United States, including shopping malls and restaurants. At least six people were killed and approximately seventy injured. The FALN operation marked the biggest terrorist campaign within U.S. borders, yet Clinton's clemency released individuals from prison after serving less than twenty years of terms running from fifty-five to ninety years. Clinton's clemency action for the FALN did not receive the formal review of the pardon attorney, the deputy attorney general, or the attorney general. D OJ officials met several times with advocates for FALN clemency but did not solicit the views of victims or other law enforcement officials. Background checks by the FBI were not requested. The White House was aware that the FBI was on record as opposed to clemency for the FALN members. Contrary to DOJ regulations, the FALN members did not "execute a formal petition" to the pardon attorney. The DOJ had been involved earlier in the FALN matter in 1996, when Pardon Attorney Love advised against clemency (No clemency 1999, A21). In 1999, Clinton decided to cut the pardon attorney out of the picture. He was not the first president to skirt DOJ procedures. President Gerald Ford pardoned Richard Nixon in 1974 without DOJ input, and President George Bush in 1992 pardoned six Iran-Contra figures without asking the DOJ for advice (U.S. Senate 1999, 115). The clemency to the FALN members provoked bipartisan condemnation from members of Congress. Although Democrats in Congress regularly came to Clinton's defense on other matters, most Democrats were either silent on the clemency decision or issued public rebukes. Speaking on September 13, Senator Dianne Feinstein (D-CA) was blunt: "Some have described these prisoners as political prisoners. They were not. They were terrorists" (145 Cong. Rec. S 10770). Senator Robert Torricelli (D-NJ) pulled no punches: "The people of the FALN are not heroes, they are cowards. They hid in the night, they planned bombings against innocent people for a cause that has no merits" (U.S. Senate 1999, 62). Those who defended the clemency did so by arguing in favor of the right of the Puerto Rican people to self - determination and to rid themselves of their status as a "colony." Representative Nydia Velazques remarked: "We have had time, over 100 years of keeping a colony. That is a violation of the civil rights of the people of Puerto Rico" (145 Cong. Rec. H8808). Senator Torricelli found no grounds for that argument: I do not know of any political cause that has less merits than those of the FALN. This is not the African National Congress. It is not any legitimate effort at national liberation. The people of Puerto Rico are in voluntary political association with the United States. They have voted repeatedly and overwhelmingly to be in voluntary political association with the United States. The day, the hour, the moment the people of Puerto Rico decide they do not want political association with the United States, they will have their independence. (U.S. Senate 1999, 61) Both chambers passed resolutions condemning Clinton's pardons. On September 9, the House adopted language stating that Clinton's decision violated "longstanding tenets of United States counterterrorism policy" and was "an affront to the rule of law, the victims and their families, and every American who believes that violent acts must be punished to the fullest extent of the law." The House resolution further stated that "making concessions to terrorists is deplorable and that President Clinton should not have offered or granted clemency to the FALN terrorists." The resolution passed 311 to 41 (145 Cong. Rec. H8019-20). The party split was 218 to 0 Republican, 93 to 41 Democrat. A Senate resolution deploring the clemency to FALN terrorists passed five days later by a vote of 95 to 2 (145 Cong. Rec. S 10818). The resolution pointed out that "no petitions for clemency were made by these terrorists, but other persons sought such clemency for them." Like the House resolution, the Senate deplored the making of concessions to terrorists and said that Clinton should not have granted clemency to the FALN members. Politically, Clinton took a terrific beating. Throughout his administration, he and his party moderates had successfully taken the law-and-order issue away from the Republicans. Clinton supported the death penalty, called for more police on the streets, and took initiatives against international terrorism. Yet nothing could have poisoned his relationship with the law enforcement community more than his clemency order for the FALN. What did Clinton possibly hope to gain, politically or otherwise, from the clemency decision? Some observers thought his decision might help Hillary Clinton in her race for New York Senator or possibly Al Gore in his presidential campaign. Is the Puerto Rican or Hispanic community so monolithic and unconcerned about crime that they would automatically cheer the release of the FALN members? Hard to believe. Even if one made a strained argument that clemency could attract Puerto Rican voters, those suspect gains would be more than outweighed by having Clinton publicly advertise that Democratic interest in law enforcement is hollow and contrived. At Senate hearings on September 15, 1999, several members of the law enforcement community testified and submitted statements. One of those who appeared was Gilbert G. Gallegos, national president of the Fraternal Order of Police, the largest police organization in the country with 283,000 members. He included the letter he wrote to President Clinton protesting the clemency decision. As to any possible calculation that the clemency would generate sympathy among Hispanic Americans for Democratic candidates, he said, as an Hispanic American, "I can assure you that releasing violent convicted felons before they have served their full sentences and to waive tens of thousands of dollars in criminal fines, is no way to appeal to racial pride." Referring to police officers around the country who had stood "side by side" with Clinton in fighting crime, "caving into these [human rights] advocates is a slap in the face" (U.S. Senate 1999, 9). The police officers who testified at the Senate hearings all reported the same fact: not one had been asked by the administration for his or her views on giving clemency to the FALN members. Gallegos said he requested to consult with Clinton, "as did the victims. They did not even receive a response, as I did not receive a response" (U.S. Senate 1999, 35). The only witness who gained entry to the Administration was Dr. C. Nozomi Ikuta, an ordained minister of the United Church of Christ. She was able to talk to White House Counsel Jack Quinn, White House Counsel Charles Ruff, Deputy Attorney General Eric Holder, and Pardon Attorney Roger Adams about the clemencies (U.S. Senate 1999, 56-57). That is extraordinary access to top administration officials. When asked about the clemency decision, Clinton told two reporters on January 18, 2000, that a president "should rarely commute sentences and should have good reasons for doing so if he does, knowing that they will always be somewhat controversial" (Public Papers of the Presidents 2000-2001, I, 77). Yet he then said that his White House Counsel, Charles Ruff, "handled it entirely, and only he handled it." With such politically sensitive decisions, why place the matter in the hands of one person, no matter how gifted and trusted? Why not seek outside assistance from federal agencies to ensure that Ruff(and Clinton) had full access to available information and considerations? In that same meeting with the reporters, Clinton insisted, "categorically there was no politics in it." If there were no politics, why keep the process so closely guarded in the hands of one White House official? Clinton acknowledged that the DOJ has its own independent bureaucracy for evaluating these things. And the tradition is that the President doesn't rule on them, one way or the other, until you get all these recommendations sent to you. And I think what I believe is that-although this operation had a life of its own ... is that we should be granting more pardons. (Public Papers of the Presidents 2000-2001, I, 78) Clinton's reference to the "independent bureaucracy" in the DOJ is an exaggeration. The pardon attorney's office consists of six attorneys (U.S. Senate 1999, 117). The language, "a life of its own," suggests that there was something unique and highly special about the FALN clemency. The phrase seems to imply a decision within the administration that was far from routine and nonpolitical. It is not reasonable to think that Ruff handled the clemency issue in a purely nonpartisan or nonpolitical fashion. He was a remarkable public servant, but he knew better than anyone that a White House counsel must alert the president to such obvious political facts as the opposition of the entire law enforcement community and the likely support of the Puerto Rican constituency (Wallison 1999, A27). Those ingredients must be identified and weighed. Clinton, in a letter to Representative Henry Waxman (D-CA) on September 21, 1999, insisted that "political considerations played no role in the process" (U.S. House 1999, 10). That statement lacks credibility. Political considerations on a clemency decision like the FALN always play a role, and they should. Clinton justified the clemency decision on numerous grounds. On September 9, 1999, he said it was requested "by hundreds of people, including President Carter, Bishop Tutu, and many other religious leaders and Members of Congress." He acknowledged that "obviously, there were those who disagreed" (Public Papers of the Presidents 1999, II, 1513). This account makes the decision sound quite political, with supporters and detractors lining up on different sides. Moreover, a presidential decision to pardon someone is supposed to stand on its merits. It is not better or worse because Carter or Tutu offered support. The decision is presidential, not part of a polling operation. On that same day, in an extraordinary statement, Clinton said he "did not believe they should be held in incarceration, in effect, by guilt by association." Someone is a victim of "guilt by association" when arrested and punished because of something a family member or associate did or perhaps because they belong to the race or ethnic group of the suspect. The FALN members were in prison because of what they did. They conspired to support violence and terrorism. They helped build bombs and transport explosives. Several were caught with weapons in their van on the way to a terrorist attempt. Their intent to commit violence failed only because they were first apprehended. As a former law professor, Clinton should know the meaning of "guilt by association." Finally, in his September 9 statement, Clinton justified the clemency because "none of them, even though they belong to an organization which has espoused violent means, none of them were convicted of doing any bodily harm to anyone." The FALN members did not just belong to an organization that "espoused" violence. Their organization practiced it. As for not doing any bodily harm to anyone, they worked with an organization dedicated to violent action and they knew it. That knowledge is sufficient to justify conviction. Several of them intended to commit violence but were arrested before they could complete their assigned task. Congressional efforts to learn more about the FALN matter came to an end when Clinton invoked executive privilege to refuse subpoenas from congressional committees to turn over records of private deliberations that led to the clemency decision. The White House maintained that the president's pardon power "is not subject to legislative oversight" (Seelye 1999, A1). Conclusions Clinton's administration was filled with unilateral actions. They seemed to serve him well in some instances. Other than a few setbacks in Congress and the courts, his executive orders, proclamations, and memoranda advanced White House and Democratic party interests (Cooper 2001). Congress has considered bills and resolutions to curb these presidential instruments, but thus far, legislation has not been enacted. The House amended the Antiquities Act-the basis for Clinton's 1996 proclamation setting aside 1.7 million acres in Utah for a national monument-to limit such designations to 50,000 acres. However, the Senate did not act on the bill. Clinton was quite successful in wielding the veto power. President Reagan used to say that he could not veto the megabills dumped in his lap a week or so before the start of the fiscal year. Clinton proved that a president could veto these bills and use the threat of a shutdown to force Congress to draft money bills more to his liking. Clinton repeatedly used military force against Iraq, Haiti, Bosnia, Kosovo, Sudan, and Afghanistan without once coming to Congress for authority (Fisher 2000). Congress occasionally challenged him, but never successfully. Probably the gravest injuries to Clinton resulted from the exercise of powers that unquestionably belonged to him: the removal and pardon powers. The range of his actions, from firing people in the White House Travel Office, to giving clemencies to FALN terrorists, and to the last-minute pardons of Marc Rich and others, did lasting damage to his years in office. Even if corruption cannot be proved, the slapdash nature of the process displayed a lack of professionalism, discipline, and judgment. Procedures and due process are important not just to protect individuals but to safeguard presidential power and constitutional government. Those principles seemed unimportant to Clinton. ****** Louis Fisher is senior specialist in separation ofpowers at the Congressional Research Service of the Library of Congress. His books include American Constitutional Law (4th ed., Carolina Academic Press, 2001).
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