Opening Statement of Professor Benton Becker before the Senate Judiciary Committee on February 14, 2001


I am pleased to have this opportunity to appear before the Judiciary Committee of the US Senate to discuss Article II, Section 2 of the United States Constitution, which provides, "President shall have power to grant Reprieves and Pardons for offenses against the United States except in cases of impeachment." That is all the text of the Constitution has to say on the subject of pardons. Twenty-seven years ago, in the early days of the Ford Administration, I undertook the task of researching the historical precedents pertaining to presidential pardons seeking to determine the constitutional scope of the pardoning authority of Presidents. Little constitutional change has occurred on this issue since 1974.

With a very narrow, limited exception, the presidential power to issue pardons is absolute, and under almost all circumstances, not subject to review by the judicial branch. The sole exception, whereby a presidential pardon "may~~ (such exception, fortunately having never occurred in history) be the subject of judicial review pertains to instances whereby the grant of a presidential pardon concurrently satisfies all elements of, and the evidentiary requirements for, federal bribery or other criminal statutes. Should such occur, and I do not represent that the Rich/Green pardons constitute such an instance, only after a prudent determination that solid unimpeachable evidence of criminal wrongdoing exists.

Such circumstances are, and have been, thankfully, almost non-existing. Approximately twenty years ago, the State of Tennessee successfully suffered through litigation disputing the constitutionality of initiating criminal prosecution action against its seated Governor in a criminal case wherein it was asserted that the Governor of the State regularly engaged in the wholesale sale of pardons and commutations. May our nation never be made to suffer similar humiliation.

I am advised that the Senate Judiciary Committee is considering what legislative enactment, if any, it might undertake to prohibit and/or deter future Presidents from issuing presidential pardons similar to those granted to fugitive financiers Marc Rich and Pincus Green. Initially, I would affirm that any constitutionally valid legislative enactment that undertakes to restrict the President's pardoning power under Article II, Section 2 must be enacted as a Constitutional Amendment. A mere legislative enactment, adopted by a majority of both houses of Congress and signed by the President restricting the presidential pardoning power in any manner would be unconstitutional. Therefore Senators, any change in the law on the subject of presidential pardons must, by necessity, require a change in the Constitution of the United States.

I do not recommend passage of a Constitutional Amendment on this subject. A proposed Constitutional Amendment granting Congressional or Senatorial approval or veto authority over presidential pardons is, in my view, unwise and unnecessary. The Founding Fathers placed this absolute power, albeit undemocratic power, in the Constitution in recognition of the fact that governmental adherence to the letter of the law does not, in all instances, result injustice. And, to hedge against those instances of injustice, this non-reviewable pardon power was granted to the President. There is little doubt in my mind that this power was not meant for people like Misters Rich and Green, but that does not justify tampering with... or cluttering, the Constitution.

My experience with the presidential pardoning power dates back to 1974 and was at the time interwoven with the question of ownership and possession of the records of the Nixon presidency. On August 9, 1974, Richard Nixon departed the White House to San Clemente. He left behind, in neatly packaged and sealed boxes stored on the forth floor of the Executive Office Building, five and one-half years of accumulated records, papers and tapes, including all tape recordings from the Oval Office. At noon on August 9, 1974, Gerald R. Ford became President by prearranged timing of the Nixon resignation. It was forcefully argued by many in the White House staff that the newly sworn-in President was only a custodian or bailee of the Nixon records, papers, and tapes left behind in the White House. Within twenty-four hours after Mr. Nixon's departure, President Ford's inherited Chief of Staff, Alexander Haig, reported that the former President had landed successfully, had unpacked his bags and had telephoned Haig demanding the immediate transmittal of all "his" records, papers and tapes.

President Ford directed his Attorney General, William Saxbe, to instruct the Department of Justice to prepare a legal opinion on the subject of who, Richard Nixon or the US government, owned the records, papers and tape recordings accumulated during the five and half years of the Nixon administration. And furthermore, if ownership was determined to have been vested with the former President, what right, if any, did President Ford have to refuse to transfer the records, papers and tapes to San Clemente?

The Department of Justice's opinion presented to President Ford within one week, concluded that primarily through custom and tradition, and only partially through law, the records, papers and tape recordings accumulated during the presidential term of the former president were the exclusive personal property of the former President and that there was no legal justification to refuse their transfer to the former President. I could not then, and I have not in the succeeding twenty-seven years, found either fault or error in the factual or legal conclusions contained in the Justice Department opinion. Nonetheless, Robert Hartmann's and my advice to President Ford was to ignore the Justice Department opinion and to refuse the Nixon transmittal request. My advice, rendered to a two-week occupant of the Oval Office, was to disregard (indeed, to disobey) the law, and retain possession of the records of the Nixon administration at all costs. President Ford sought to create a device whereby the Nixon records could be held by the Ford White House, in effect placed in a holding pattern, and thereby providing an opportunity for the courts and the Congress to act. Richard Nixon's subsequent execution of the Deed of Trust transferring the records and tapes to the General Services Administration served as that holding device for the Ford presidency.

President Ford, like the rest of the nation, had been given only twenty-four hours for transition before assuming the presidency. It is fair to note that virtually every Nixon White House staff person inherited by President Ford urged President Ford to comply with the Justice Department's recommendation to send all documents, papers, and tapes to their "rightful owner" in San Clemente. Much was said in the Oval Office at that time, some catchy and not so catchy. To his credit and courage, President Ford ignored the advice of his own Justice Department, his Chief of Staff and his newly inherited White House Staff He ordered that no records, papers and tapes be sent to San Clemente.

I was asked by President Ford to research the scope of the presidential pardoning power. Several legal issues were obvious and easily discernible; other, like land mines concealed in American jurisprudence, awaited an opportunity to explode. Those issues included
1. Presidential authority to grant a pardon pre-conviction, and in the case of Richard Nixon, a pardon pre-indictment. The precedents were clear on this question both at common law and in our judicial history. No constitutional prohibition prevented pre-indictment pardons, in fact, they appear often in our history.
2. Presidential authority to grant pardon without specifically delineating the precise federal criminal statutes for which the recipient had been pardoned. If a person receives a pardon and thereafter is prosecuted, the charged individual virtually pleads the pardon at bar as a defense to the pending charge, however, ifa pardon defense is plead, it is incompetent under the pleader to point with specificity to his or her pardoned act and statutes. Failing such specificity of proof by the accused, the defense will fail. Nonetheless, the precedents were clear. An executive grant of a pardon does not require a specific recitation of statutes or criminal acts. By my reading of the news accounts of the large grouping of one hundred and forty pardons in one document signed by President Clinton, I read that some twenty-plus pardoned individuals (not Misters Rich or Green) filed no pardon applications. . . causing the validity of those pardons, in my mind, to be questionable. The question is, absent a pardon application, or any other record, what was the individual pardoned for?…and within what period of time?
3. Whether a presidential pardon granted to Richard Nixon would, in fact, accomplish its preventive prosecution purpose The reasoning, partly political and partly legal, was elementary; what purpose would be served by pardoning Richard Nixon, if thereafter the law allowed for the criminal prosecution of Richard Nixon by sovereigns other than the United States? In fact, that was precisely what the law allowed. The law of this nation is that a pardon issued by the President protects individuals from subsequent prosecution for the pardoned acts only, and only in federal courts for federal crimes.

Simply stated, Richard Nixon's September 1974 pardon did not serve as a bar against any subsequent prosecution against him that might have commenced, and could have commenced in, for example California. California could have elected to proceed, post-pardon, with a criminal prosecution of Richard Nixon, alleging the former president conspired with others to violate California's criminal burglary statute in the matter of the Los Angeles break-in by the White House Plumbers of Daniel Ellsberg's psychiatrist's office.

Even though one of the charged defendants in that would be prosecution may have possessed a blanket presidential pardon, sovereign states are sovereign, and precedent upon precedent allows subsequent state prosecutions of individuals holding federal pardons. The sovereign states of this Union are free to elect what consideration, if any, their courts will afford to federal pardons. Many states provide an informal degree of comity to recipients of federal pardons, but the vast majority of states, including California, jealously refuse to dilute their exclusivity and sovereignty of this issue.

Although each of these issues provided me with some significant measure of sleeplessness at the time, with the passing of twenty seven years, they have evolved to the exalted statues of academic discourse. Some would argue that that is where these issues have always belonged.

And that is, in my view, where the question of constitutionally amending the pardoning process belongs. That process ought not be politicized, through the inclusion of Congressional approval or veto authority. It ought not be trivialized by mandatory preconditions requiring the maintenance of specific types of memos and records. I urge this Committee to trust history, and our presidential historians, to judge the propriety of presidential grants of pardon; and to trust the judgement and the good sense of the American people. I urge this Committee to resist the momentary temptation to unnecessarily clutter the Constitution.