Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, January 11, 1993 TAG: 9301130015
SECTION: EDITORIAL PAGE: A-7 EDITION: METRO
SOURCE: MARK J. ROZELL
DATELINE: LENGTH: Long
NO CONSTITUTIONAL ABUSE
PRESIDENT Bush's controversial pardons of former Defense Secretary Caspar Weinberger and several other Reagan White House officials implicated in the Iran-Contra inquiry have set off a flurry of protest of the presidential pardoning power not seen since President Ford's grant of clemency to Richard M. Nixon.Unfortunately, in their zeal to make the case that Bush's use of the pardon power was wrong, a good many of the critics have made egregious errors in constitutional interpretation and fact. Whatever one thinks of Bush's decision, the facts must be presented correctly.
Several arguments have been presented against the legitimacy of the Bush pardons:
The pardons violate the principle of separation of powers that the framers intended to protect with the Constitution's restriction on the use of pardons "in cases of impeachment."
The pardons undermine the independence of the special prosecutor, also a violation of the principle of separation of powers.
Bush's actions constitute a "political" use of the pardoning power.
Bush misused the pardon power to protect himself from any further Iran-Contra inquiries.
The first argument, made most forcefully by writer Gary Wills, is based on a misunderstanding of the impeachment exception contained in the Constitution. According to Wills, the framers prohibited the president from issuing pardons "in cases of impeachment" to protect Congress' independent role in investigating the other branches of government.
Wills erroneously broadens the meaning of that one exception to mean that a president cannot pardon anyone under investigation by Congress, even if that individual is not the subject of an impeachment inquiry. There is absolutely no case-law precedent for Wills' creative interpretation of the impeachment exception.
A definitive court opinion on the matter made clear that the president could not use the pardoning power to prevent an impeachment proceeding against an individual who was "in the public service." The individuals pardoned by Bush were neither the subjects of impeachment proceedings nor in the public service when pardoned.
The fact that Bush's pardons may have interfered with the inquiries of the special prosecutor is of no moment constitutionally.
The presidential pardoning power is an entirely independent, unfettered prerogative - except, again, for cases of impeachment - that cannot be overridden by a statute creating an independent Office of the Special Prosecutor. No statutory regulation or executive branch policy enacted under a congressional statute can nullify or override the president's constitutional authority.
The question of whether the president may use his constitutional authority to pardon, even if such action undermined the independence of the special prosecutor, arose after Ford's pardon of Nixon. Watergate special prosecutor Leon Jaworski concluded that "there is nothing in the charter and guidelines appertaining to the Office of the Special Prosecutor that impairs or curtails the president's free exercise of the constitutional rights of pardon."
Jaworski had participated in the sessions at which the Special Prosecutor Charter had been formulated. He wrote that any attack on the presidential pardoning power on the basis that such a power violated the independence of the special prosecutor would be "spurious."
The question of Bush's motivations - that his use of the pardoning power was "political," and that he sought to protect himself - also is of no moment constitutionally.
Again, because of the unlimited scope of the presidential pardoning power, whether Bush's actions were motivated by partisan politics, self-interest or high-minded concern for the public welfare, makes no difference at all. He had the authority to do what he did, and there is nothing anyone can do about it.
Finally, it is hard to imagine that the president issued the pardons merely to protect himself, particularly when we consider that the pardoned individuals no longer can cite Fifth Amendment protection against self-incrimination to refuse to answer future inquiries on Iran-Contra.
The pardons blotted out all possible criminal guilt, and made it more likely that these individuals can talk freely in the future about the events that transpired in the Iran-Contra affair. It stands to reason that if Bush had something to hide and wanted to protect himself, he would not have issued the pardons.
Regardless of what one thinks of the wisdom of these pardons, Bush's decision to issue them is a constitutional fait accompli. The ultimate judgment of the wisdom of his decision will be made by history.
If Congress decides to conduct inquiries into the Bush pardons - and that increasingly appears likely - then Bush might want to follow the precedent established by President Ford after the Nixon pardon, and appear before Congress to forthrightly answer any questions about his decision. Like President Ford after the Nixon pardon, Bush could then put an end to much of the speculation over his motives and perhaps move the national focus on public affairs to matters of more immediate import.
Mark J. Rozell is associate professor of political science at Mary Washington College in Fredericksburg. Essays by him on the presidential-pardoning power have appeared in the Journal of Law & Politics, Presidential Studies Quarterly and the book, "Gerald Ford and the Politics of Post-Watergate America."