THE U.S. SUPREME COURT AND THE USE AND MEANING OF PARDONS

By GEORGE LARDNER Jr.  Published: March 26, 2007

 

George Lardner Jr., an associate at the Center for the Study of the Presidency and a former reporter for The Washington Post, is writing a history of presidential pardons.
 

ALL the talk about a potential presidential pardon for I. Lewis Libby Jr. has infuriated critics of the Bush administration; many feel that a Libby pardon would amount to a whitewashing of the White House’s actions relating to Valerie Plame’s identity.

 

Perhaps they should take heart: Mr. Libby may escape prison time, but if he accepted a pardon, he (and Mr. Bush) would have a hard time continuing to insist that he was an innocent victim of a vengeful prosecutor. It would also undermine the claim that the Plame investigation was a partisan ploy to discredit the White House, and leave another stain on Mr. Bush’s legacy.

 

Here’s why: If Mr. Libby were to accept a traditional presidential pardon — a “full and unconditional? grant of clemency — he would be admitting that he was guilty of the crimes of which he was convicted: obstructing justice, perjury and lying to the F.B.I. Perhaps it shouldn’t be that way, but it is — no ifs, ands or buts about it. So, while many who have been pardoned like to claim they have been “exonerated,? that simply isn’t so.
The Supreme Court laid down the law in 1915 in a case that, paradoxically, grew out of a debate over the sanctity of a newspaperman’s sources. Six decades later, President Gerald Ford relied heavily on the court’s decision — in his own mind, though not publicly — in justifying his pardon of Richard Nixon. Ford would have preferred an open confession of guilt by Nixon instead of the grudging statement that confessed nothing, but Ford consoled himself with the doctrine that acceptance of a pardon is, legally and ethically, an admission of guilt.

 

The story behind the 1915 case is little known but very relevant today. It involved the city editor of The New York Tribune, George Burdick, who, unlike journalists in the Libby case, flatly refused to testify before a federal grand jury about his sources for an article on fraud in the United States Custom House in New York. He said he might incriminate himself in his testimony. The federal prosecutor saw a quick pardon as the answer to this problem, and President Woodrow Wilson agreed.

 

Wilson gave Burdick “a full and unconditional pardon for all offenses against the United States? he might have committed in connection with the article and for any other matter the grand jury might ask him about. That would seem to have let Burdick off the hook, but he still didn’t want to testify. He refused to accept the pardon, and was locked up for contempt.

 

The case went to the Supreme Court, which held that Burdick was within his rights and ordered him discharged. In doing so, the court embraced Chief Justice John Marshall’s 1833 definition of a pardon as “a private, though official? act of grace whose validity depended on its acceptance: “It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.?
Marshall’s pronouncements, in United States v. Wilson, were pure dicta — nonbinding observations — but the courts treated them as gospel. In the Burdick case, the court likewise held that “a pardon, to be effective, must be accepted? because it “carries an imputation of guilt; acceptance a confession of it.? This made Marshall’s view the law of the land.

 

The problem is that both Marshall’s definition and the court’s 1915 reinforcement of it were bad history and tortured logic. Acceptance of a pardon should not be a confession of guilt, especially if there is documentation of innocence. The “imputation of guilt? would disappear if acceptance of a pardon were not required. If one has no choice but to take a pardon, it would become like a grant of immunity, and thus would be noncommittal.

 

There is nothing in the Constitution that gives a person the prerogative to turn down a pardon, and strong support in the Constitutional debates for the president’s having an unfettered power to grant one. “The benign prerogative of pardoning should be as little as possible fettered or embarrassed,? Alexander Hamilton wrote in The Federalist No. 74. Even more to the point, the framers turned down an effort to limit the power to pardons “after conviction? because they wanted to make it useful for law enforcement. That is, of course, exactly what President Wilson tried, and was told he couldn’t do, in the Burdick case.

 

That Marshall, the supreme judicial activist, wanted to fetter this presidential power makes his 1833 decision all the more questionable. It is worth noting that, years earlier in the Aaron Burr treason trial, Marshall had been left tongue-tied over the question of pardon acceptance after President Thomas Jefferson vainly tried to stuff one down the throat of an unwilling witness. Perhaps in the 1833 case, with Jefferson now dead, the chief justice was having the last word, even if it was at the expense of the Constitution.

 

Some jurists have pointed out the weakness of his logic, not to mention his history. In 1927, a Supreme Court ruling by Oliver Wendell Holmes Jr. in a case involving a prisoner whose death sentence was commuted to life in prison noted that “a pardon in our days is not a private act of grace from an individual happening to possess power.?

 

“When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed,? he continued. “Just as the original punishment would be imposed without regard to the prisoner’s consent, and in the teeth of his will, whether he liked it or not, the public welfare, not his consent, determines what shall be done.?

 

This repudiation of Marshall did not, unfortunately, overturn the Burdick decision. At the urging of the Justice Department, Holmes limited the decision to apply only to commutations of sentences, not to pardons.

 

What all this means for Mr. Bush is that he can’t win. If he gives Mr. Libby a traditional pardon, one of his administration’s most powerful officials has to admit to wrongdoing — a remarkable event for an administration that seems pathologically averse to apologizing or even admitting mistakes.

 

The alternative is for Mr. Bush to not only pardon Mr. Libby but also officially proclaim his innocence. This, however, has not been done in decades: despite bold rhetoric, not even Ronald Reagan went that far in his pardon of W. Mark Felt, the man who turned out to have been Deep Throat, in a case involving illegal F.B.I. searches; nor did President Bush’s father in forgiving Caspar Weinberger or other Iran-contra defendants. Were Mr. Bush to declare Mr. Libby’s innocence, it would seem not only the height of hypocrisy, but also to back up the claim of Mr. Libby’s lawyers that he was a “fall guy? for other officials, just as his lawyers claimed.

 

No matter what one thinks of the folks in the White House, it seems clear that they have been put in a bind by the Supreme Court’s bad precedents. Still, there does appear to be some justice in the fact that, while Mr. Libby may not spend a day behind bars, the Bush administration is hardly going to get off scot-free.
 

 

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