Talk of presidential pardons for Adm. John Poindexter and Lt. Col. Oliver North "before the independent counsel concludes his investigation" is suspicious. A pardon now would be bad politics and highly questionable law.
All legal systems have some version of clemency to individualize the law, to correct sentences and, mostly in modern times, to return lost civil rights. But a pardon presupposes an offense: it forgives it but does not eradicate it. American law has limited pardons to the postconviction process, with a few extraordinary exceptions not pertinent to the current situation involving North and Poindexter.
Devotees of original intent might be interested in the views of the Founding Fathers. The U.S. Constitution (Article II, Section 2) gives the president the "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." On Aug. 27, 1787, during the Constitutional Convention debates, Luther Martin of Maryland moved to add the words "after conviction" following the word "pardons." James Wilson of Pennsylvania objected, arguing it conceivably might be necessary to pardon before convictions "in order to obtain the testimony of accomplices." For that reason, Martin withdrew his motion. Of course, we have ways to secure accomplice testimony now without granting pardons -- offering witnesses immunity in exchange for testimony, for example. As to the danger of a president's misusing the pardon power to cover up his own guilt or the guilt of wrongdoers who might be "his own instruments," the Founding Fathers noted there was always the impeachment power.
When the constitutional provision for pardon was discussed a year later in the state ratifying conventions, this potential problem was addressed. Hauntingly prescient, Virginia's George Mason warned the Virginia convention about the dangers inherent in the president's pardon power: "he may frequently pardon crimes which were advised by himself. . . . If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?" James Madison assuaged his concern by noting that if a president used his pardon power in a "suspicious manner" to shelter someone, "the House of Representatives can impeach him."
In an opinion to President James Madison on March 30, 1810, Attorney General William Wirt suggested that in the case of a confessed crime, there might be no absolute requirement that there be "a sentence of conviction on the verdict of a jury." But even Wirt noted that "it would be much safer, as a general rule, to require a previous trial and condemnation; . . . on a full trial the court and jury will never fail to recommend to mercy, if there be any ground for such recommendation; and the President will thus be placed on a sure footing. The latter course, too, so far as I am informed, is more consonant with the general practice both of the State and federal governments."
The one and only Supreme Court decision covering this question was Ex parte Garland, decided in December 1866. That case was brought by an attorney who was refused admission to practice in the Supreme Court because he could not swear he had never borne arms against the United States, as Congress had required. He had been in the Confederate Congress, representing Arkansas, which had seceded from the Union. But, in 1865, Garland was given "full pardon and amnesty" by President Andrew Johnson. The question was whether the bar admission law passed by Congress infringed on the president's pardon power.
The Supreme Court said that it did and ruled in Garland's favor, stating that the president's pardon power "extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment."
However, the Garland case pertained to amnesty (group clemency), which is not the same as pardon. Garland never dealt with either the legal question or a factual situation relevant to North and Poindexter. It is not extraordinary to grant amnesty before trial, but scholars agree that pardons are issued after conviction. The language of Garland is, as we lawyers say, dicta, meaning that the specific question was not before the court and the particular words were not necessary to the court's decision.
There are no other pertinent Supreme Court cases and only one relevant lower federal court case. In 1975, a federal court in Michigan upheld President Gerald Ford's unconditional pardon of Richard Nixon, quoting the language in Garland. Of course, Nixon's wrongdoing had been established in the House, where the Judiciary Committee had voted for his impeachment before he resigned. The Michigan case did state that a pardon implied guilt of an admission of a crime, and it noted the national need for a return to the political tranquility that Ford thought would follow his pardon of Nixon.
Pardon attorney David C. Stephenson recently said that there are records of some pardons before sentences late in the 19th century and early in the 20th. Nine were desertion cases, in several of which pardons were conditioned on the party's reenlisting in military service; three others occurred in order to ensure the parties' testimony, federal records show. More recently, in the Kennedy and Johnson administrations, there were three instances of pardons aimed specifically at returning civil service retirement benefits to government officials whose rights had been forfeited administratively under the Hiss Act. There were "administrative findings" of their having violated the law in all three cases.
The current Department of Justice rules governing petitions for executive clemency do not even provide for applications for clemency before trial. Citizens are not eligible to apply for pardons until five years after their release from prison, probation or parole, or after conviction if there was no prison sentence. Indeed, the applicable rule raises the waiting period to seven years in certain cases, including "violation of public trust involving personal dishonesty" and "fraud involving substantial sums of money," among others. Last year 770 federal pardon applications were pending; 23 were granted and 115 denied; the rest are still pending.
A client of mine who ran a successful program for ex-offenders proudly displayed his framed pardon on his office wall where others hang diplomas and awards. He got his pardon the old-fashioned way, as the Smith-Barney ad goes: he earned it. A pardon before trial is a perversion of the law that could only heighten skepticism about the whole process.
The writer, a Washington attorney, was a Justice Department prosecutor in the Kennedy administration.