D.O.J. "Guidelines" and the Pardon Power

One common blunder in clemency commentary centers around discussion of "guidelines" for clemency applications in the Justice Department. A recent article in Newsweek illustrates the point well. Michael Isikoff and Mark Hosenball mull over the Department's "waiting period" for applications (five years from conviction) and declare them "one significant roadblock" to a Scooter Libby pardon. At the same time, but rather in passing, they undercut the general thrust of their piece by recognizing that "nothing" requires the president to follow such "guidelines." They also quote a former pardon attorney who says, "the president can do whatever he wants." For once, it would be nice for someone to start the conversation there, then explain how such "guidelines" are perfectly reasonable - if not necessary - restrictions on the Department and pardon applicants, but not the president.

Yes, there was a time when congressmen could barge into Abraham Lincoln's bedroom and lobby for pardons, or chase down Ulysses Grant while on vacation. But the rational response to growth in population, crimes, convictions, prison populations and the power and responsibilities of the presidency was a bureaucratic framework for processing applications. As clemency is a critical factor in our system of checks and balances and the Constitution explicitly gives the ultimate use of the power to the president, there was also reasonable concern over arbitrary and capricious behavior within that bureaucracy. Pardon application "guidelines" are not intended to create several hundred little presidents. They are there to prevent the appearance of anything like several hundred presidents!

On the other hand, the same "guidelines" are fantastically silly if applied to the president. The president, for example, should not have to wait five years to delay an execution scheduled for next week. The president should not have to wait a single day to free a prisoner wrongly convicted, regardless of how an embarrassed judge or a team of prosecutors feel about it. Fortunately, John F. Kennedy did not feel the need to wait when he commuted the sentence of a notorious spy (a thousand times the threat to national security than Scooter Libby could ever be) in order to retrieve downed U2 pilot Gary Powers. In the Federalist Papers, Alexander Hamilton justifies the clemency power as a tool to quell rebellions. He would have laughed himself to tears at the suggestion that the guidelines of nameless, faceless bureaucrats should restrict the president.

Newsweek is impressed that Justice Department "guidelines" stress the importance of "remorse" in applicants and the desire for "forgiveness rather than vindication." Were the executive branch intended to be swallowed up by the judicial and legislative branches, the "guidelines" are useful enough. But, where the executive branch disagrees with the other branches, there isn't a single reason in the world not to use the checks and balances provided by the Constitution.

You couldn't even count the number of persons pardoned who expressed no regret whatsoever for their behavior. Many such persons have been pardoned in spite of the fact that they did not apply for clemency. Instead they maintained their innocence and loudly condemned the justice system and the president who pardoned them. Looking back, we celebrate their lack of remorse! The female suffragettes who picketed outside the White House, and were arrested, went to their trial with bags packed, longing for incarceration. None of them were sorry for their actions. None of them asked for clemency.

But they got it. ASAP. No waiting. To them, and the President who pardoned them, I say "hoo-rah!"