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| PARDON PROBE | |
 February 14, 2001  |
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Following House and Senate hearings on the Clinton pardon of Marc Rich,
Gwen Ifill discusses the history and future of presidential pardons
with two pardon experts.
Background |
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Margaret Love, how did we get to this mess? |
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| Presidential power | ||||||||||||||||||||
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GWEN IFILL: What are the rules? We are led to believe that the President has carte blanche power according to the Constitution? What are the rules? MARGARET LOVE: He does have power, but perhaps in respecting that power from a very early time, the President has always relied on the advice of his Attorney General, and from the 19th century all pardon cases went through the Justice Department and came to the President only after a full investigation and recommendation from the Attorney General. And that protected the President to a great extent. GWEN IFILL: Bill Clinton changed this? MARGARET LOVE: Well, it appears that he did. I would not have known that when I was pardon attorney, although there were little signs I think along the way. I was pardon attorney for the first five years of the Clinton administration, and it seemed that there was more of an interest in handling pardon matters in the White House and not relying quite so much on the Department. GWEN IFILL: Christopher Schroeder, does the President have the power to grant blanket pardons like this at the last minute in quantities of hundreds -- and should he have that power?
GWEN IFILL: If the President does have this power and also potentially the power for abuse, is this something that the framers anticipated when had they drafted this line in the Constitution? CHRISTOPHER SCHROEDER: Well, they did. I think it's quite clear that they understood that was the power that could be abused. James Madison, federalist, has a famous sentence, he says enlightened statesmen will not always be at the helm. They understood that you couldn't always count on the virtue of elected officials and yet they wanted this power to be broad so it would be flexible, because they didn't think they could anticipate all the circumstances in which it might be justifiable and they wanted the President to be able to act with dispatch. And they thought it was an important enough tool both in the service of some national policy objective or for humanitarian reasons to give him the authority and then to run the risks of some abuses. |
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| A change in the pardon process | ||||||||||||||||||||
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MARGARET LOVE: No it, really isn't and I think it's interesting that Chris has an idea that pardons have come at the end of the term -- because in fact, this is the first time that I'm aware of that a huge number of pardons was done at the very end of the term. Usually Presidents pardon very evenly across their term. They pardon evenly across the year. This is not a holiday occasion except in this administration. And it's true there have been fewer pardons in the past fifteen or twenty years, but even in President Reagan and President Bush's administrations, it was a fairly regular process through the year. GWEN IFILL: Okay. Mr. Schroeder, we've established that was an unusual set of circumstances. What should, can Congress do about it? CHRISTOPHER SCHROEDER: Well, Senator Specter - as you know -- has a proposal to amend the Constitution. I think that was getting very little support from his colleagues on the committee today. And it was a proposal that I spoke against. I don't think that the -- whatever one may come to evaluate as the merits or demerits of these 11th hour Clinton pardons, I think under the worst interpretation of them they don't yet justify amending the Constitution, which is quite a drastic step to take. I'm pretty risk averse about doing that. There are things I think the Congress can do by way of legislation to --. GWEN IFILL: For instance?
GWEN IFILL: Margaret Love is smiling. I have to ask - MARGARET LOVE: I strongly disagree. Actual they has been tried once before -- at the beginning of the Eisenhower administration there was certain about some end of administration pardons that President Truman had done and President Eisenhower committed himself to pardoning in a fish bowl in a very open way. I think that lasted about six months. Putting aside the constitutional objections to constraining the President's pardon power -- and I think there are some -- I don't think it will work. If the President can't get the kind of advise that he needs from the justice Department, he'll simply go elsewhere. GWEN IFILL: One of the reasons why this one got through apparently by all accounts is because of the secrecy that he surrounded it and the secrecy that the lawyers representing Mr. Rich worked to maintain. Is there some way to remove that veil of secrecy from the pardon process, or should it be removed? MARGARET LOVE: I don't happen to think that it should be. I think that confidentiality is essential. I think what we need to restore is trust. I think we need to restore a sense of regularity, frequency, the ordinary operation of the pardon power that can be seen by people to be just, merciful, regular, and I think that is the most important thing; that they see the results are fair and right. |
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| Looking ahead | ||||||||||||||||||||
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CHRISTOPHER SCHROEDER: Well, we live in times where there is a whole lot of currency of trust gourds towards government. It's going to be a difficult thing to do. I think trust has to come back by actions -- by the way the next President comports himself; how seriously he takes the responsibilities to use regular procedures to make sure the process involves victims and prosecuting attorneys and judges. If President Bush makes this a, not just a commitment in words but one that he carries through on I think it would go along way to restoring some trust. GWEN IFILL: We just heard Senator Specter allude to the possibility of the US Attorney investigation in New York about potential quid pro quos involving this Marc Rich pardon. Is that something that you think helps the process or potentially hurts it? CHRISTOPHER SCHROEDER: Well, you can't help the process. On the other hand, I think if there is a sufficient evidence to believe that there is some reason to investigate, it's going to be the responsibility of the U.S. Attorney to follow the facts where they lead and call them, the shots as she develops the evidence. GWEN IFILL: Would the action like that bring the Department of Justice back front and center in the process as you'd like?
GWEN IFILL: We'll have to leave that there for now. Margaret Love, Christopher Schroeder, thank you both for joining us. |
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GWEN
IFILL: Now, joining us to discuss the history, the future and the controversy
surrounding broad presidential pardons, Margaret Love, who was the pardon
attorney in the Department of Justice during both the first Bush and
the Clinton administrations, from 1990 to 1997. She's now in private
practice here in Washington. And also, Duke University Law and Public
Policy Professor Christopher Schroeder; he testified before the Judiciary
Committee today, and he also served in the office of legal counsel at
the Department of Justice from 1993 to 1997.
MARGARET
LOVE: Well, I think if I had a single explanation, it would be not following
the rules. I think that the failure to follow the procedures that have
been laid out and have been followed for the most part for over 100
years in processing pardon applications was what got to us this place.
I think when you depart from rules, particularly in as sensitive a discretionary
area as this, it tends to make things appear irregular, odd, curious,
suspicious. 
CHRISTOPHER
SCHROEDER: Well, he does. The Constitution is quite clear about this.
And very few people have doubted that the President's power is very
broad -- extends to any federal offense except impeachment. There are
no standards in the Constitution and it's unreviewable. And, yes, Presidents
do have the power to grant massive numbers of pardons. Now, historically
this hasn't occurred. We have had something of a pattern of presidents
in the last term granting pardons towards the end, President Bush's
Christmas Eve pardons of Caspar Weinberger and five others involved
in the Iran Contra affair is a notable past example, but it hasn't been
as numerous a number of pardons that as Margaret says haven't gone through
the normal process that I think anybody can remember. 
GWEN
IFILL: Margaret Love, you mentioned the facts -- this is different than
it has been in the past. We think -- when we think of modern day pardons
conducted in the last several presidencies, of the Caspar Weinberger
pardon that you mentioned or last minute Christmas Eve type pardons;
is this not the way it usually works? 
CHRISTOPHER
SCHROEDER: To make the part process more statutorily grounded than it
is now by stipulating requirements that the pardon attorney has to follow
largely I think duplicating regulations that are now in place but making
them by statute -- and then by -- in the same enactment, if they wished,
encouraging the President in as strong as language as the Senate and
House care to draft and enact that Presidents avail themselves of this
process, and I think in this current climate I wouldn't be at all surprised
if President Bush would be willing to sign a stipulation, a presidential
directive committing himself to that course of action. Now, that sort
of an amendment is as far as you can get.
GWEN
IFILL: How do you bring trust back to the process -- if it's missing?
MARGARET
LOVE: I hope we that can look ahead. I think that the Rich case is a
distraction. And I think what the US Attorney is doing in New York is,
you know, what she has to do and what she feels is the right thing to
do. I think what is really important now is for the new President, President
Bush, to give very serious consideration about how he wants to exercise
the power -- what he wants to accomplish with it; what public purposes
it ought to serve and to really think about that and then decide how
is he going to have administered? I would hope that he would decide
after thinking about it to administer it through his attorney general,
as he always has, to strengthen the system -- also to tend to the fact
that there are hundreds and hundreds of applications coming from inmates
serving very lengthy guidelines or mandatory minimum sentences. That
is a real issue that has to be taken care of, and a lot of ordinary,
garden variety people want garden variety pardons. They don't have lawyers
and they need them. Civil disabilities coming from felony convictions
are a very serious matter these days. 
