Seth Lipsky, a former Wall Street Journal editor, investigated in some depth the prosecution of Marc Rich and the subsequent pardon given by Bill Clinton and came out of it on Rich's side. He describes what he found an interesting and somewhat persuasive op-ed piece today. What's at question here is the possible misapplication of government powers under RICO.
Lipsky went on to study the record left by the men who, two hundred years ago, framed the law governing pardons as well as Bill Clinton's explanation of his use of the pardon in Rich's case, and writes: "The president’s explanation struck me as the statement of a man who, whatever faults he may have shown in office, understood the pardon power in the way the founders of America intended."
Most of us haven't studied in detail "the pardon power the way the founders of America intended," nor are we bound to agree with the founders in all matters. But what Lipsky writes about intended latitude in the use of the presidential pardon is particularly interesting given the possibility that a president who has violated the Constitution and international law over and over again could (with limitations) pardon himself. Of course, this backgrounder on the use of pardons also illuminates president-elect Obama's choice of Eric Holder. Let's remember that the incoming president is a well-respected scholar and professor of constitutional law. This isn't unfamiliar territory for him.
Here's what Lipsky has to say:
"The Constitution restricts the president’s use of the pardon in only one instance, cases of impeachment. It does not say that the president may not pardon a fugitive, a point that angered the prosecutors in the case. Mr. Clinton himself wrote that the process would have been better served had he spoken directly with the United States attorney in New York. But the Constitution does not say that a president must, or even ought to, consult the Justice Department or go through other channels. Why, after all, should the Justice Department be the judge of its own performance?
"One of the most astonishing things about the record left by the founders is how passionately they wrestled with the pardon question. Gilbert Livingston, at the New York ratifying convention, demanded a requirement that the Congress approve a pardon for treason. George Mason, one of Virginia’s delegates to the constitutional convention, warned that a president could use the pardon to protect his own guilt. Yet, save for cases of impeachment, all calls for restrictions were rejected. It is clear that the founders understood the pardon as one of the most basic checks and balances of the constitutional system.
Try to imagine a circumstance in which this democratic republic's "basic checks and balances" would be under such threat that use of the full power of the pardon could be essential. Most Americans probably think that's unlikely. But we are always at risk of not recognizing when things are coming to that point, like frogs in water that's heating up to boiling point.
In fact, the two terms of George W. Bush are as close to "boiling point" as the nation has probably come. There are plenty of people (and teams of talk-show hosts) who remain so blinded by partisan fevers that they will not see the threat to democracy from one of their own. One can well imagine 18th century scholars wrestling with the problem of building into our system a device for "letting off steam." A little respect, please, for the guys who could anticipate, though they couldn't have named, "George W. Bush" or who anticipated the federal government's misuse of something called the "Racketeer Influenced and Corrupt Organizations Act."
As for the rest of us, we've been too deep in boiling hot partisan politics to be reliable judges of who got a raw deal and who didn't.
