WASHINGTON -- One of the privileges of power in the United States is that state governors and U.S. presidents have the right to pardon criminals.
On January 19 -- his last day in office -- U.S. President George W. Bush commuted the prison terms of two U.S. Border Patrol agents who were convicted in 2006 of shooting and wounding a drug smuggler. Their case brought an outcry from critics who argued that the two men were merely doing their jobs.
This wasn't the first time a president waited until the last moment to commute a sentence or pardon a person outright. Where does this prerogative come from? Who have historically been its beneficiaries? And why the practice of granting clemency at the last minute?
RFE/RL correspondent Andrew F. Tully put these and other questions to Robert Spitzer, an expert on the presidency and a professor of political science at the State University of New York at Cortland. RFE/RL: Who in the United States has the right to issue pardons?
Robert Spitzer: The president of the United States has the right to pardon pretty much anyone he decides he's going to pardon, for pretty much any kind of offense. State governors also have pardon power within the jurisdiction of their particular state. But the president's power pertains to anyone or any place in America.
RFE/RL: Does this pardoning power apply to people who haven't been convicted of anything, but are thought to be vulnerable to prosecution? U.S. presidential scholar Robert J. Spitzer
Spitzer: Normally, a presidential pardon is reserved for people who have been convicted or at least charged with crimes. They are often people who are in jail, in fact, serving time, or perhaps even who have served time and been released from jail, but whom the president would like to have their records expunged for whatever reason.
The case of President Gerald Ford in the 1970s was unusual because he did issue a blanket pardon to former President Richard Nixon. Nixon had not been charged with any crimes, although he had been named what was called "an unindicted co-conspirator" in some of the Watergate-related matters [that led to Nixon's resignation], and that suggested that Nixon might well have been subject to indictment at a later point. And so President Ford took the initiative early in his term to issue a blanket pardon for Nixon so that he could not be indicted, much less convicted. RFE/RL: Has there ever been another case of a preemptive pardon by a president?
Spitzer: That was unusual, but it was within his pardon powers, and Ford did it because he felt that Nixon had suffered enough -- he had lost his office, he had resigned his presidency, the first president in American history ever to resign in disgrace. And there was a strong feeling, as well, that the country needed to move on from the Watergate matter, and the best way to do that, Ford felt, was to pardon Nixon and set aside the possibility that there would be some kind of nasty, lengthy, protracted prosecution of Nixon.
It was a politically controversial decision for Ford to issue the pardon of Nixon, Gerald Ford's popularity dropped dramatically, and Ford himself always felt that the Nixon pardon was what caused Ford not to be elected president two years later in 1976. RFE/RL: Now that the Nixon pardon is history, not just a recent event, was Ford, in your opinion, right?
Spitzer: I would agree with Ford's decision, simply as a citizen and an observer. Arguably, it's a close call. I think Nixon did commit criminal offenses. I think that's very clear now. A prosecution probably would have gone ahead had there been no pardon.
But given the fact that he [Nixon] was elected to the very highest office in the land twice, and given everything that he did go through, my own view is that Ford probably did the right thing for the country. And I will add that I do not think it caused Ford to lose the 1976 election because there were other [political] factors at play. RFE/RL: The Nixon case clearly was unique. In general, though, who have been the beneficiaries of presidential pardons? Have they historically tended to be people who have, as Americans say, "paid their debts to society," or have they been scoundrels, or has there been a mix of both?
Spitzer: There are many, many different kinds of people that have received presidential pardons over the decades, and pardons go back to the beginnings of America's history. The idea of a monarch issuing pardons is really a very old idea, and that's where this comes from. It is kind of a holdover from the monarchical days of Britain. America gets much of its legal heritage from Britain. And the people who are pardoned or have been pardoned throughout history are of many types.
Sometimes it is purely a case of mercy, where the president feels that the person has suffered enough. Sometimes the pardon is the result of a belief that the person being pardoned was prosecute wrongly or perhaps was subject to a sentence that was out of proportion to the crime. Sometimes a pardon results from the belief that the person being pardoned has reformed himself or herself. RFE/RL: What about President Bill Clinton's pardon of fugitive Marc Rich, the wealthy political campaign contributor, during Clinton last hours in office in 2001? (Editor's note: Rich had been indicted on charges of tax evasion, tax fraud, and illegally making oil deals with Iran. He fled to Switzerland during his prosecution.)
Spitzer: At the end of his presidential term, Bill Clinton pardoned Marc Rich, and it was surely the most controversial pardon that he issued. Clinton issued a flurry of pardons at the very end of his presidency. Many of them did not go through the usual vetting process, as they say, where lawyers in the Justice Department will examine various pardon claims. But Marc Rich was one example of a pardon that jumped over that process, and that raised suspicions.
Marc Rich and his wife had close ties to Bill Clinton. They raised money for his campaigns. The biggest problem with the Marc Rich pardon, really, I think, was the fact that he had such a close association with Clinton to begin with. RFE/RL: Which brings us to the ultimate question: Why do presidents grant these pardons in the last hours of their presidencies?
Spitzer: Pardons can occur at any time during a presidential administration, but they do tend to come especially at the end, and for a couple of reasons. One is because it's business presidents tend to bump down the road, as it were. Also, pardons can raise political questions. Presidents have little to gain politically by pardoning people, and stand to lose a fair amount because if they pardon people -- like the Marc Rich case -- or if President [George W.] Bush were to issue some last-minute pardons that were politically questionable, it could only hurt their political standing.
But when the president is walking out the door, it doesn't really matter. And also, media attention will generally be less at the very end of a presidential administration because all of the focus and attention is on the new president coming in. RFE/RL: Given the potential for inappropriate pardons, is there anything Congress can do to make sure that pardons go only those who deserve them?
Spitzer: There have been efforts in the past in Congress to curtail the pardon power of presidents. There is a question, however, whether such a move would be constitutional or not. It is a power that is generally recognized to belong to the president, and Congress perhaps could legislate to establish a more detailed procedure for the issuance of pardons. There might be other, more technical things Congress could do, but there's probably not very much political desire in Congress to try and tamper with the pardon power.