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(FINDLAW) -- William Jefferson Clinton's defense of his last-minute presidential pardons, which appeared in The New York Times on the Op Ed page on Sunday, raises at least as many questions as it answers.
Even the Times itself on the same day was critical of the Op Ed piece. Already, Clinton is having to backtrack on his claim that three "distinguished Republican attorneys" -- Leonard Garment, Brad Reynolds, and Lewis Libby -- "reviewed and advocated" the case for the Marc Rich and Pincus Green pardons.
As it turns out, while these lawyers helped build a defense for the pardon recipients, they played no role in the pardon request itself.
No doubt Clinton critics in Congress and elsewhere are digging beneath Clinton's other claims and defenses as presented in the column -- especially his crucial "no quid pro quo" denial that Marc Rich's ex-wife Denise Rich's contributions to the Clinton library and various Democratic political campaigns influenced the pardon decision.
It would be easy to poke holes in Clinton's Op Ed defense. He leaves unexplained, for example, why he or his advisers did not consult with the Justice Department's pardon attorney or give the U.S. attorney for the Southern District of New York, Mary Jo White, who originally brought the Rich-Green case, a chance to defend the merits of her prosecution.
But what I found most interesting about Clinton's explanation was not these obvious omissions. Rather, it was the way Clinton's general discussion of the pardon power actually highlighted the significant damage he may have caused when he showered get-out-of-jail-free cards on his political supporters.
Historical justifications of such pardons
In the wake of the Clinton pardons, critics have already started talking about limiting the Constitution's granting of broad, unreviewable "plenary" power to the president to award "reprieves and pardons" for federal offenses. The Clinton Op Ed piece, in contrast, makes a strong case -- albeit implicitly -- for why such unfettered executive authority was a wise invention.
American history is littered with prosecutions that, in hindsight, appear overzealous or politically motivated -- and Clinton's column refers to several of them. For example, Eugene Debs garnered millions of votes when he ran for president, but the nation sent him to jail anyway, for the "crime" of giving a politically unpopular speech. President Harding was more than justified in pardoning Debs.
Other prosecutions, although originally well-justified, have been eclipsed by changing times. In the 1960s and 70s, the government indicted thousands of Vietnam draft resisters. President Carter's omnibus pardon of them helped bind up, and heal, the nation's wounds from the Vietnam era. President Washington's pardon of the Whiskey Rebellion conspirators, and even President Ford's pardon of Richard Nixon, served much the same function.
Pardons have also served as a reasonable reward for individuals whose public service or private virtue has come to overshadow a transgression in their pasts -- demonstrating that the transgression was an aberration, not part of a pattern.
In addition, pardons can serve as a last safeguard for cases in which belatedly discovered evidence casts doubt on an accused person's guilt, but normal judicial remedies have proved fruitless.
Clinton's pardons and tradition
The best test of Clinton's pardons is whether they fit within the important historical tradition in which he attempted to place himself. The answer is that some do, but some do not -- and the Marc Rich pardon is one that certainly does not.
Some of Clinton's pardons undoubtedly fit the bill. I can readily see why he pardoned Patty Hearst, a tragic figure from a tortured time whose criminal conviction had long since outlived its usefulness. I can even see why Clinton pardoned targets of the independent counsels who dogged his administration: Several of the independent counsel prosecutions took on the cast of political witch-hunts.
But several other Clinton pardons cannot possibly be squared with the high purposes Clinton invoked in his column.
Consider the pardon of Marc Rich.
Rich has been a fugitive from American justice for 18 years. While the wisdom of the indictment against Rich may be debated, there is no evidence that it was politically motivated. Nor is there evidence that it had no merit.
Rich's attorneys claim he is a victim of overeager prosecutors, who based the charges against him on a strained interpretation of complex corporate laws. But these claims have never been tested in court. Indeed, thanks to Rich's flight abroad, they represent little more than the expensive musings of Rich's army of well-connected defense attorneys.
Finally, the Rich pardon cannot be said to serve some larger national purpose. On the contrary, it has defeated an important national ideal: ensuring equal justice for rich and poor alike.
Nor is Rich's pardon an isolated instance. In his last days in office, for example, Clinton shortened the prison sentences of four members of the New Square Hasidic community, the support of whom Hillary Clinton successfully courted during her Senate race. The four New Square men had been convicted of bilking U.S. taxpayers out of tens of millions of dollars.
No one argued these men were innocent. And it would take a lot of chutzpah to argue that the sentences for white-collar criminals are too harsh, when blue-collar defendants serve long terms for relatively minor drugs offenses. So what higher moral value could possibly justify cutting these prison terms? The answer is none.
Dangers of undermining powers to pardon
The point is simple. Clinton's last-day pardon orgy is so distressing precisely because past pardons have served such significant purposes. The Constitution, as Clinton noted, makes the pardon power a matter of unfettered presidential discretion. But there is no greater enemy to the future exercise of wise discretion than the abuse of that power.
Clinton's pardons destroy the high standards of the past and set the bar low for the future. In the worst case, they could lead to a Constitutional amendment limiting a power many presidents have used for wise and just ends.
As Clinton observed in his Op Ed piece, granting well-deserved pardons has often been a controversial and politically dangerous act. In our political culture, it is always easier to prosecute than to forbear, and to punish rather than to forgive. But by issuing pardons that undermine the pardon tradition, Clinton has made it all the more difficult for his successors to muster the political courage to issue the kinds of pardons upon which history is most likely to look kindly.
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