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The price of mercy sometimes is controversy

By Roger Cossack
CNN Legal Analyst

IN-DEPTH SPECIAL • Politics, power and money: The pardons controversy  COURTSIDE CNN Legal Analyst Roger Cossack takes a look at legal issues in the news Previous Columns

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(CNN) -- Article II, Section 2, of the Constitution says, in part, "[the president] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

That is it! That's all there is! The president does not have to ask the Senate. He does not have to seek advice from Congress. He does not even have to ask Greta. He can grant pardons or reprieves on his own -- and no one can do anything about it.

I think that our founding fathers, under the pressure of trying to create our Constitution in a way that would make it acceptable to all the states, sometimes just did not pay a lot of attention.

Can't you see Ben, James and Alexander sitting around the local tavern after a hard day arguing who gets what powers and how, and saying, "Look, on this pardon business, let's just give it to the president and move on; we have this federalism thing to worry about."

So, all these things that we read -- about how the president did not follow procedures for certain pardons or commutations, how individuals were able to lobby him directly, or how someone received a pardon because his claim for mercy may have been related to the amount of money given on his behalf -- really mean little if anything.

The reason is, like it or not, the Constitution gives the president complete and absolute power to make these decisions. And it is not as if the founders did not know what they were doing.

There was a debate over this power, with one side arguing that the Senate should share the power to pardon with the president, giving its "advice and consent" as it does on treaties and presidential appointments.

In the final analysis the founders decided against this and gave the power to only the president.

Over the years a procedure for pardons was established. There is a pardons attorney in the Justice Department who advises the president, and there is a method for submitting papers to request the pardon.

But there is no rule that requires the president to follow this procedure. If the president wants to pardon Timothy McVeigh, he could, and no one could do anything about it.

So, if all of this is true, what is going on with all these committees? Good question.

The House and Senate committees may conclude that President Clinton exercised bad judgment, that he granted pardons on behalf of donors, or that he had some other nefarious reason.

But it does not matter. Unless the "smoking gun" is found -- that is, the ubiquitous "quid pro quo" between the president and the person who received the pardon -- then it really is an exercise in anger management.

Congress cannot indict anyone. It can gather information and write final reports, but that is it.

The investigation being conducted by Mary Jo White, the U.S. attorney in New York, is another story.

White's office can impanel grand juries, it can ask for indictments, and it can do all of those things we expect from law enforcement. But even if her office finds that bribery occurred -- and I hasten to say that at this time there is no hard evidence of bribery -- it is questionable whether the pardon could be set aside.

There is only one way to modify this presidential power -- to amend the Constitution -- and there is simply very little chance of that happening. Frankly I think that is a good thing.

A pardon, in the final reading, is an act of mercy. President Clinton was not the first president who granted controversial pardons.

I am sure President Ford's pardon of Richard Nixon after the Watergate scandal and President Bush's pardon of former Defense Secretary Caspar Weinberger for his alleged role in the Iran-contra affair did not go through the pardon office.

It is also important to remember that President Clinton granted many pardons few people would argue with.

Perhaps the founders simply wanted to place this act of mercy above politics, giving this unfettered power to the one person elected by the entire country.

When you give someone unrestricted power, it is clear that there will come a time when it is exercised in a way that not everyone will agree with.

That is the price of mercy.

CNN Legal Analyst Roger Cossack is a Law Center contributing editor and co-host of CNN's "Burden of Proof". Send comments to him by writing to roger.lawcenter@cnn.com.

Stuart Rothenberg: Clinton actions hurt friends and help adversaries
February 22, 2001
Pardon charges could be hard to prove
February 15, 2001
U.S. attorney launches criminal probe of Rich pardon
February 14, 2001
List of presidential pardons
January 20, 2001
Clinton's eight reasons for Rich pardon
February 18, 2001

U.S. Department of Justice
U.S. Senate
Committee on Government Reform

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