Commentary: Pardon me? Or thee?
This article first appeared in the St. Louis Beacon, Dec. 18, 2008 - Article II, Section 2, of the U.S. Constitution provides that the president "...shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in cases of Impeachment."
The founders obviously anticipated that Illinois would eventually achieve statehood and elect a governor. Three of the last seven men to hold that post wound up in prison. With the current occupant of the office presently out on federal bond, the odds look good that the magical 50 percent convict-to-governor ratio could soon be breached.
On Dec. 8, the Post-Dispatch reported on efforts to secure a presidential commutation for the last Illinois governor, George Ryan. He's one year into a six-year sentence from a public corruption conviction. Under federal guidelines, he would normally have to serve 85 percent of that time before becoming eligible for parole.
But as the Bush administration enters its twilight hours, the case was advanced that Ryan was old (73) and his wife frail and there was thus little to be gained by keeping him locked up -- especially with Christmas coming.
The Free-George movement took a hit the next day when the sitting governor, Rod Blagojevich, was arrested by the FBI on unrelated public corruption charges. Among other things, he's charged with attempting to raffle off the U.S. Senate seat left vacant by the election of Barack Obama.
Demonstrating that bi-partisan politics are still possible, Democrat Blagojevich had supported clemency for Ryan, a Republican. Now it appears that Ryan may be able to return the favor, although it's unclear how much influence he can wield given his current status as a guest of the government. And chances for a commutation dimmed considerably when his advocate took a fall, thus raising considerably the political stakes at risk in his early release.
Despite their somewhat alarming rate of incarceration, Illinois governors are not solely responsible for prison overcrowding. A lot of other people either in prison or at risk of going there would like the departing president to invoke his power of reprieve and/or pardon before leaving office. To fully appreciate the situation, it is necessary to distinguish between the terms involved and to consider the political consequences of each.
A pardon is an executive order that vacates a conviction. A person convicted of a serious offense who is subsequently pardoned is no longer a convicted felon. The pardon fully restores his civil rights and exempts him from any further punishment for his crime.
A commutation, or reprieve, mitigates the punishment for a person convicted of a crime but does not vacate the actual conviction. A citizen whose felony conviction has been pardoned can, for instance, vote and own firearms while one whose sentence has been commuted cannot.
Dick Cheney's chief of staff, Scooter Libby, received a commutation to keep him out of prison after his conviction in the Valerie Plame affair. Look for him to get a full pardon before W. moseys on back to Crawford.
Our system of federalism operates under the principle of dual sovereignty. The state of Missouri is, thus, a sovereign state within a union of such states. That union is governed by an independent sovereign, namely, the United States government. Municipalities within a given state, like the city of St. Louis, are not sovereign entities.
This legal construct makes it possible for an individual to be prosecuted by both the federal and state government for the same incident without violating the constitutional prohibition against double jeopardy. The officers charged in the Rodney King beating, for example, were acquitted in a California state court but later convicted federally over the same episode.
Who has the power to pardon a given offense is determined by which sovereign has jurisdiction. A person charged under a state law would have to appeal to the governor of the state in question, while only the president can grant pardon or reprieve for a federal crime.
The power to pardon or commute is plenary, meaning that the decision is not subject to further legal review. This is not to say, however, that exercise of the prerogative is without political consequence. A California governor who chose to pardon Charles Manson, for instance, could probably anticipate a significant drop in his approval ratings along with some rather fervid impeachment proceedings.
Because of the controversial nature of the act, presidents typically delay significant decisions in this regard until they're ready to leave office. Bush I was a lame-duck when he granted Christmas Eve pardons to six of the principal players in the Iran-Contra Affair; Clinton waited until his final day before dispensing some rather dubious amnesty.
The current President Bush faces an interesting dilemma. His administration has been characterized by expansive interpretations of executive power, especially in matters pertaining to national security. Individuals who worked for him relied on these interpretations to prosecute the War on Terror, but a new Justice Department could view their actions in a different light.
Further, it is unclear whether a president can pardon himself. Though nothing in the language of the Constitution specifically precludes it, undefined terms in a legal document are read by their common meaning. As a pardon is normally understood to be something one grants another, the case can be made that he cannot.
To be totally secure in his retirement, Mr. Bush could pardon his administration en masse, then step down to allow his newly immunized vice president to pardon him. Remember, you don't have to be charged to be pardoned (see Ford's pardon of Nixon).
Of course, that far-fetched scenario would be devastating to his legacy and is unlikely to occur. But the extent to which Mr. Bush chooses to exercise his power to pardon will reflect his degree of confidence in the actions he's taken.
M.W. Guzy is a retired St. Louis cop who currently works for the city Sheriff's Department. His column appears weekly in the Beacon.