Hamilton: Rose garden, I never promised you a pardon
December 15, 2016
Between now and January 20, 2017, brace yourself for a lot of talk about presidential pardons. See: U.S. Constitution in Article II, Section 2, Clause 1: "The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The pardon power is limited to: federal offenses, does not reach state or civil cases, cannot effect an impeachment process, pardons cannot control the Judicial Branch, and cannot be issued before a federal offense is committed.
With these few exceptions, the U.S. Supreme Court says the presidential pardon power is virtually unlimited. A sitting President can offer pardons to anyone, except in cases of Impeachment. In Ex parte Garland (1867) Justice Field opined: "…A pardon [means] that in the eyes of the law the offender is as innocent as if he had never committed the offense…"
But can a sitting president pardon himself? Presumably, President Nixon could have pardoned himself. But President Nixon chose to resign and was then pardoned by President Gerald Ford.
Army soldier, Bowe Bergdahl, who — despite appearing in a maroon beret, never jumped from a military aircraft and is not a paratrooper — just asked President Obama for a pardon, rather than face a General Courts-Martial under the Uniform Code of Military Justice (UCMJ). In essence, Bergdahl is pleading guilty to deserting his post to avoid hazardous duty (UCMJ, Article 85) and to misbehavior before the enemy (UCMJ Article 99). Those are federal crimes which President Obama could pardon, although there would be obvious embarrassment to President Obama for failing to understand how Bergdahl is detested by the troops he deserted and for not checking out Bergdahl's bizarre relationship with his rather "unconventional" parents.
How about Hillary? Assuming Mrs. Clinton wants a pardon from President Obama for whatever, if any, federal crimes she committed while Secretary of State, Mrs. Clinton would have to have been charged with a federal crime prior to January 20, 2017. Hillary need not be convicted, just charged, and President Obama could issue her a pardon. But former President Bill Clinton cannot be pardoned for the two federal crimes that got Bill Clinton Impeached by the House.
Wait. There's more: President Bill Clinton granted a pardon to playboy financier, Marc Rich, who, in 1983, was indicted on 65 criminal counts, to include trading oil with Iran at a time when the Mullahs were holding American hostages. Through his former wife, Rich made a huge donation to Hillary Clinton's 2000 U.S. Senate campaign, provoking former President Jimmy Carter to say, "I don't think there is any doubt that some of the factors in [Rich's] pardon were attributable to his large gifts. That was disgraceful."
How President Obama administers the pardon power in his final days in the Oval Office will shape part of his legacy. Pray, on the subject of pardons, it is not "disgraceful."