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So which one do you believe — Hamilton or Burton? That is, Alexander Hamilton, the brilliant framer of the Constitution who helped pen the Federalist Papers? Or Dan Burton, the Republican representative from Indiana chairing an inquisition into former President Clinton’s clemency chaos who — well, he’s no Alexander Hamilton. Take Burton first. At his congressional hearings, Burton deplored the fact that “the normal review process at the Justice Department was completely bypassed.” Which is to say, our famously unruly former president couldn’t follow the rules. But if you listen to Hamilton, the whole point of the pardon power is to break the rules. Look at Federalist No. 74. There he wrote that the “criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” That is, the president’s power to pardon serves to ameliorate the merciless — or mindless — application of criminal process. As Chief Justice William Rehnquist wrote for the Supreme Court: “Executive clemency has provided the ‘fail safe’ in our criminal justice system,” for it is an “unalterable fact” that our justice system and those who administer it are “fallible.” It’s not just partisans like Burton who have a backward conception of the pardon process. Roger Adams, the Justice Department’s current pardon attorney, bemoaned to a Senate committee that, “With respect to the pardon of Marc Rich and Pincus Green, none of the regular procedures were followed.” And when asked on a news show, “How did we get into this mess?” Margaret Love, who used to hold Adams’ job, responded, “I think if I had a single explanation, it would be not following the rules.” So let’s look at those rules. First rule: the Constitution. It states, “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That’s it, as far as the Constitution is concerned. Pardoning is a power that is the president’s alone. If he wants to sit around flipping coins all day — heads, you’re out of jail; tails, you’re out of luck — so be it. That said, nothing in the Constitution prohibits the president from making rules for pardoning. And so he or, at least, his predecessors have done just that. The Code of Federal Regulations has a bunch, generally regarding who is eligible to file for a pardon. The crux is this: “No petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner.” Mind you, that’s just to get through the door. To actually get a pardon, according to the United States Attorneys’ Manual, the applicant needs to be judged on the basis of several criteria, including “post-conviction conduct, character, and reputation,” “seriousness and relative recentness of the offense,” and “acceptance of responsibility, remorse, and atonement.” In considering specific cases, investigators should contact the prosecuting attorney, the sentencing judge, and, sometimes, the victims of the crimes. The rules are advisory only — in theory. But back up for a moment. Note the sort of crime that the Constitution allows the president to pardon: “Offenses against the United States.” That is, the pardon power covers crimes violating federal law. That means crimes prosecuted by the Justice Department and its U.S. attorneys. And back up again. Adams is the pardon attorney not within the White House and not within an independent agency — but in the Justice Department. That means the same Justice Department that advocates a war on drugs and a tough-on-crime stance is in charge of screening pardon applications. It means that an organization with a vested interest in prosecuting and convicting people is in charge of recommending whether those convictions should be put aside. As former Pardon Attorney Love testified to Congress: “[O]ver the past 20 years, [Justice's pardon program] has gradually come to reflect the unforgiving culture of federal prosecutors, and is now perceived primarily as a conduit for their views.” If she’s right that prosecutors have captured the pardon process, that means the fox is guarding the henhouse. INSIDE A CAPTURED PROCESS With that in mind, take another look at the pardon rules. They’re geared toward pardoning those who have accepted guilt and are rehabilitating themselves: “As a general matter, in clemency cases the correctness of the underlying conviction is assumed, and the question of guilt or innocence is not generally at issue … . In cases involving pardon after completion of sentence, the United States Attorney[] is expected to comment on the petitioner’s post-conviction rehabilitation, particularly any actions that may evidence a desire to atone for the offense.” And “[a] petitioner should be genuinely desirous of forgiveness rather than vindication.” To be sure, rehabilitation is a worthy goal. But it’s also one that exalts the Justice Department and its lawyers, by vindicating their efforts to restore order to society through prosecutions. What about the rationale for the pardon power given by Hamilton and Rehnquist — to correct an overly harsh or misguided prosecutorial system? “Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion,” states the manual. Does that mean pardon investigations fail to consider the overall wisdom of the prosecution? So much for the original intent of the Framers. These rules, which today Clinton is being flogged for ignoring, have not bound past presidents. Ronald Reagan in 1981 pardoned two FBI agents convicted for illegal break-ins. The New York Times reported back then that “Reagan once told an aide that he thought the agents were being penalized unfairly because they believed they were acting according to the law.” Today, the U.S. Attorneys’ Manual discounts precisely that excuse as a basis for issuing a pardon. (And while the current federal regulations governing pardons did not exist in 1981, Reagan’s administration instituted them in 1983.) Presidents Andrew Johnson, Harry Truman, and Jimmy Carter all pardoned rebels and draft dodgers, many of whom, no doubt, did not “evidence a desire to atone for the offense.” The first President George Bush pardoned Casper Weinberger and others, in part, because, as Bush said, “In recent years, the use of criminal processes in policy disputes has become all too common.” Does that explanation meet the “formidable burden of persuasion” for individuals basing their claims on a “miscarriage of justice”? And don’t even try to fit Gerald Ford’s pardon of Richard Nixon into the rulebook — even though it was one of the wisest uses of the power in living memory. OUTSIDE JUSTICE To sum up, there are three problems with the current state of granting pardons. First, rules meant to be an advisory guide to the president are now being treated by critics as binding. Second, those rules fail to encompass the full purpose of pardoning, a purpose that includes correcting failures of the criminal justice system as well as acknowledging rehabilitation. And third, the pardoning process seems to have been captured by the very prosecutors who run our inevitably flawed criminal justice system. If you were the president and saw all these restrictions on your discretionary power, what would you do? You’d probably exercise your constitutional prerogative and yank the pardon power clear of the whole mess. That’s exactly what Clinton did. As former Pardon Attorney Love testified to Burton’s committee, “[I]t appears that the Justice Department advisory process was bypassed at least in part because it was not delivering the kind of advice the president wanted.” She also testified that “many of its written responses included a phrase suggesting that the president considered the Justice Department only one of many potential sources of advice.” And that, of course, is as it should be. The Justice Department and its prosecutors should have a voice in the pardon process. But they should not control it. If presidents are to exercise the pardon power with full flexibility, they can’t be bound by bureaucratic regulations. This isn’t necessarily to attribute ill will to Clinton’s critics. Love, for instance, has made clear that she fully endorses wide use of the pardon power. As a solution, though, she offers a prescription bound to fail: further entrenching the pardon program within the Justice Department — though with an increased role for the attorney general personally. The real solution is removal of the process from Justice. Let the president appoint people inside the White House to help him. Let these appointees take a broad view as to who merits pardons — one that goes beyond rehabilitation. And let them bear in mind that they will be the ultimate fail-safe, as the Framers intended, to a criminal justice system that is inherently fallible. Evan P. Schultz is associate legal editor at Legal Times.

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