Mr. Chairman, Senator Leahy and members of the Committee. My name is Christopher H. Schroeder. I am a professor of law and public policy studies at Duke University. During the Clinton Administration, I worked for some time in the Office of Legal Counsel at the Department of Justice, including a period as the acting head of that office. As you know, one of the important functions of that office is analyzing and preserving the legitimate scope of the President’s constitutional powers, including those of chief executive officer of the United States. Since returning to teaching, issues of executive power and the relationship between the Congress and the President have been among my areas of research and scholarship.

I thank you for the invitation to discuss with you proposals to amend the President’s power to grant reprieves and pardons. I will not be commenting upon the justifications for any of President Clinton’s late-term acts of clemency, but will confine my remarks to inquiring into whether or not amending the President’s pardon power is warranted at this time. In particular, I will discuss my reservations concerning proposals for a Constitutional amendment subjecting Presidential pardons to Congressional disapproval by a two-thirds vote of both chambers taken with 180 days of the pardon. While reasonable minds may disagree, I respectfully submit that going forward with such a proposal is both unjustified at this time and unwise from the perspective of preserving the strengths of the current Constitutional system. The President’s Broad Power of Reprieves and Pardons

The Constitution vests in the President "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." Art. II, § 2.

As Presidents have exercised this power throughout the nation’s history, three features of that power have often elicited comment. First, the power is very broad in scope. Second, the power is vested exclusively in the President, and cannot be "modified, abridged or diminished by the Congress." Schick v. Reed, 419 U.S. 256, 266 (1974). Third, Presidents have used the pardon power for a wide variety of purposes.

The Supreme Court has repeatedly recognized the broad scope of the pardon power. For example, in Ex Parte Garland, the Supreme Court summarized the reach of a presidential pardon as follows:

The power thus conferred is unlimited, with the exception [in cases of impeachment]. It extends to every offence known to law, and may be exercised at any time after its commission ...[W]hen the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents . . . the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380-81 (1866). In addition to the full power of pardon, the power to grant "reprieves and pardons" encompasses all forms of clemency, including pardon, amnesty, commutation, remission of fines, and reprieve. See Daniel Kobil, "The Quality of Mercy Strained: Wresting the Pardoning Power from the King," 69 Tex. L. Rev. 569, 575-78 (1991) (collecting authorities).

Second, the President’s power is also not subject to restriction or limitation by the Congress. To quote again from Ex Parte Garland: This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. Ex Parte Garland, 77 U.S. at 380.

Third, experience has also demonstrated that Presidents have exercised the power for apparent purposes that have ranged from playing important strategic roles in matters of great public concern and interest, to giving individualized effect to a changed sense of what is just or merciful in a particular case. Some Presidential pardons that have played strategic roles in national affairs include President Jefferson’s pardon of persons who had been charged and convicted under the Alien and Sedition Act for publishing criticisms of Federalist government policies; the pardons of President Lincoln and Johnson of participants on the side of the Confederacy after the Civil War, and President Bush’s pardon of participants in the Iran-Contra affair. The most famous pardon of this sort in American history may be President Ford’s pardon of former President Nixon, a decision sufficiently unpopular at the time that it contributed to President Ford’s defeat in the next election.

"The benign prerogative of mercy" has been exercised in very particularized circumstances as well, where the specific facts of an individual case have moved the President to grant clemency. Among the recent pardons by President Clinton is that of Aldoph Schwimmer, who had been convicted and served his criminal sentence for violations of the Neutrality Act when he ferried aircraft to Israel during its war for independence, as well as those of several persons serving sentences under federal laws carrying mandatory minimums, sentences that seem quite disproportional when compared to others. President Clinton’s pardon of Preston King, who had protested racially discriminatory treatment by his draft board, eventually fleeing the country, also falls within this category. Of course, strategic pardons also can have, and most of them have had, elements of individualized mercy or justice in them as well.

These are just two significant types, not meant to be exhaustive. At the end of the day, anyone who has examined the history of Presidential pardons can only conclude that the motives and rationales behind them have been quite diverse, and as an entire group they resist all efforts to identify a set of necessary or sufficient conditions for a pardon to be granted. The elastic and standardless nature of the pardon power helps account for the comment of President Carter’s pardon attorney, John Stanish, that "[t]here never has really been much rhyme or reason to clemencies in the past." Krajick, "The Quality of Mercy," 5 Corrections Magazine 46, 53 (June, 1979) (quoting John Stanish).

The Original Understanding of the Pardon Power

None of these three elements of the pardon power were inadvertent. In each case, the records of the Constitution Convention and the Ratifying Conventions reflect consideration of them.

In the case of the broad scope of the pardon power, an amendment offered by Luther Martin at the Philadelphia Convention would have made the power exercisable only after conviction, and another by Edmund Randolph proposed to except cases of treason from among the pardonable offenses. 1 The Records of the Federal Convention of 1787 626-27 (M. Farrand ed. 1911). After discussion of the need for great flexibility in the scope of the power, Martin withdrew his motion. Randolph’s failed by a vote of 8 to 1.

The Framers concluded that pardons might be useful in advance of conviction to further national interests, such as in situations where granting pardon to a captured spy might produce significant military intelligence. Randolph’s motion was explicitly offered because of his fear that the power might be abused in the case of treason. Such pardons, he argued, could be given to agents of the very President doing the pardoning, in which case the power to pardon might enable the President to offer it in exchange for assistance in covering up the President’s own guilt. Yet the fear of Presidential abuse did not prevail against the concern that the President have maximum flexibility in exercising the power.

Likewise, placing congressional restrictions on the President’s power was explicitly proposed during the Constitutional Convention, in the form of a proposal by Roger Sherman to give the President power to reprieve until the next session of the Senate, and the power to pardon only with the consent of the Senate. 1 The Records of the Federal Convention of 1787 419 (M. Farrand ed. 1911). Like Randolph’s proposal, this one failed 8 to 1.

The conviction that flexibility was a paramount value in regards to the pardon power seems to have proceeded from the sense that it was impossible to anticipate in advance all of the circumstances in which it might be useful to fulfill the power’s two grand purposes: to provide the President a valuable policy instrument in the pursuit of national objectives, and to make available the possibility of mercy in individual cases. As James Iredell expressed it in debate during the North Carolina ratifying convention:

"Nobody can contend upon any rational principles, that a power of pardoning should not exist somewhere in every government, because it will often happen in every country that men are obnoxious to a lawful conviction, who yet are entitled, from some favorable circumstances in their case, to a merciful interposition in their favor ...[Yet] it is impossible for any general law to foresee and provide for all possible cases that may arise...Where a power is acknowledged to be necessary, it is a very dangerous thing to prescribe limits to it...For this reason, such a power ought to exist somewhere; and where could it be more properly vested, than in a man who had received such strong proofs of his possessing the highest confidence of the people?" Address of James Iredell, North Carolina Ratifying Convention (July 28, 1788), reprinted in 4 The Founders Constitution 17 (P. Kurland & R. Lerner ed. 1987). Alexander Hamilton expressed much the same sentiments in Federalist 74, when he wrote:

"Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes of so much necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance." "Federalist 74," reprinted in The Federalist 500-01 (J. Cooke ed. 1961).

Thus we can see in the debates surrounding the ratification an awareness of the salient characteristics of the pardon power. Those who wrote and ratified the Constitution made the power broad and unreviewable so that it could be utilized in circumstances where the public interest or the interest of individual justice or mercy called for its use, in the judgment of a single individual, the President of the United States. As they were endorsing this power, they were quite cognizant that its unreviewability was a source of potential abuse. Still, in settling on the present text of the pardon clause, the considered judgment of the Founding Era was that the clause’s positive virtues and usefulness represented the greater value when compared to its costs.

Standards To Be Met For Amending the Pardon Power

In light of this history, any amendment to qualify the President’s pardon power ought at the very least to bear the burden of persuasion by pointing out considerations earlier overlooked or underappreciated which now justify a conclusion opposite to that reached by the Founding generation. The burden here, I would further suggest, is greater than simply convincing us that faced with the task of drafting a Constitution today, we would come to a different conclusion as to whether or not it ought to contain a power identical to in one now found in Article II, Section Two, Clause 1. The fact that we are speaking of amending the Constitution, as well as the more particular fact that we are speaking of amending a provision in the Constitution that has stood unchanged for over two centuries, raise additional considerations that must themselves weigh in the balance.

Before even reaching an assessment of the pardon power as an isolated provision, we ought to recognize that the stability of the Constitution is a separate national asset that itself needs to be valued. Throughout our history, reverence for the Constitution itself has come to be one of the shared values that unifies an extraordinarily diverse citizenry. As the world’s oldest written Constitution, it has acquired that status in significant part because it was been so remarkably stable, amended only seventeen times after the First Congress produced the Bill of Rights, which completed the Constitutional design promised during the ratification process. Its provisions have come to stand for more than ordinary legislative enactments ever can, simply in virtue of the fact that they are Constitutional provisions.

Years ago, the noted American legal philosopher Lon Fuller captured an aspect of this sentiment when he warned that: We should resist the temptation to clutter up [the constitution] with amendments relating to substantive matters. [In that way we avoid] ... the obvious unwisdom of trying to solve tomorrow's problems today. But [we also escape the] more insidious danger [of] the weakening effect [such amendments] have on the moral force of the Constitution itself."

Lon Fuller, "American Legal Philosophy at Mid-Century," 6 J. Legal Educ. 457, 465 (1954), as cited in Hearings on Proposed Flag Desecration Amendment Before the Subcomm. on Constitution of the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (June 6, 1995) (statement of Gene R. Nichol) (emphasis added). More recently, in direct response to current proposals to change the pardon power, Chicago Law Professor David Currie has been quoted as saying, "I’m not one for tampering with the Constitution. Something has to be very seriously wrong before you mess with it, lest it become something like an ordinary law." David Currie, quoted in Peter Nicholas, "Judging the Cons of Power to Pardon," Philadelphia Inquirer Washington Bureau (February 8, 2001).

Respect for the stature that our Constitution has as a practical matter achieved in the civic life of our country ought not, of course, prevent us from revising features of it that have come convincingly to be called into significant question. Still, concern that frequent efforts to amend may well have the effect of reducing it to something like an ordinary law ought to cause us to pause before doing so, in order to assure ourselves by convincing evidence that the document truly does contain a systemic flaw. Even then, prudence further dictates that we have thoroughly explored non-amendment options that can address all or some of the deficiencies we believe that we have found. Non-amendment devices need not even be perfect substitutes for constitutional amendment, but if they can ameliorate the perceived deficiencies at acceptable costs, they may reduce the magnitude of the constitutional deficit to the point where the wiser course is to settle for these alternatives rather than to pursue the amendment option. Close examination of the calls to amend the pardon power indicates that proposals to amend it fail on both these fronts.

The immediate stimulus for proposals to amend the pardon power – the perceived deficiency in its current formulation – are perceptions of abuse by former President Clinton. The suggestion is that he has used the pardon power for self-serving reasons in situations where the legitimate purposes of the power would not have supported clemency. I am not in a position to evaluate such charges with respect to any of the recent pardons or commutations of former President Clinton. Even if these perceptions prove to be accurate, however, it would be highly doubtful that the abuses of a single President justify revising the pardon power. Before doing that, one needs to take into account the entire history of the use of the power, and reasonable projections about its future use, with attention to what an amendment will cost as well as what it will achieve.

No one can deny that it would be impossible to justify every act of clemency by American Presidents as solely advancing either some national policy interest or the interests of individual justice or mercy. This should come as no surprise to us. It would not have surprised the Founders, who understood full well that "enlightened statesmen will not always be at the helm." Federalist 10 (Madison) in The Federalist 60 (J. Cooke ed. 1961). Unfettered power is subject to abuse, and always will be. Fully aware of this, the drafters and ratifiers of the Constitution adopted the pardon power as we now see it. The relevant question is whether limiting the power would count as a substantial improvement.

Subjecting presidential pardons to subsequent Congressional approval, it must be conceded, will predictably enable the Congress to intercept some patent abuses, and the availability of such review will discourage Presidents from exercising the power in abusive ways in additional cases as well. It will inevitably do more than this, however.

For one thing, it will enable the Congress to intercept highly unpopular acts of clemency, regardless of whether or not they abuse the power. Both our better selves, as well as the interests of the country, ought to counsel that we do not wish to impair the ability of Presidents to undertake unpopular acts of clemency that he or she considers well justified. Some of the most important pardons in our nation’s history have been highly unpopular at the time. Leading such a list must be President Ford’s pardon of former President Nixon. That pardon might well have not survived Congressional review. Democrats would have decried the pardon as inexcusably preventing a trial that would have brought all the facts of President Nixon’s involvement in the Watergate affair to full public light. Indeed, many Democrats did just that, although because President Ford’s action was unreviewable, they were helpless to do anything other than protest after the fact. Had the matter been put to a Congressional vote, however, it is quite conceivable that a sufficient number of Republicans would have found it in their own best political interests to reject the pardon. They may have feared that if they did not so vote that they would be held accountable in the next election, as President Ford himself was, losing to President Carter in 1976. President Bush’s pardon of Casper Weinberger and five others indicted for Iran-Contra related offenses was also unpopular in many circles and may well have been thought difficult to justify by members of Congress, were they in a position of responsibility for it.

With the passage of time, each of these pardons has come to seem more meritorious to me than when they were first announced. Although I objected to President Ford’s action at the time, I now believe that he did the country a great service by sparing us the spectacle of a former President standing in the dock for trial. The Watergate debacle, coming on the heels of the Vietnam War, contributed enough to the public cynicism about the national government as it is. The trial of Richard Nixon could only have exacerbated matters. The Iran-Contra pardons, which I also opposed at the time, have also acquired greater legitimacy in my eyes as time has passed. The entire affair arose out of statutes that can reasonably be characterized as the criminalization of a foreign policy dispute. While the Congress has the constitutional authority to exercise its power of the purse as it did, this feature of the case, combined with the extremely strong incentives that the now-defunct Independent Counsel statute created to seek indictments, did produce circumstances under which President Bush might reasonably have concluded that Defense Secretary Weinberger and the others had been treated with undue harshness. I suspect that I am not alone in these reassessments.

The class of unpopular pardons is not confined to those related to national political disputes. Clemency can be used as a means for a President to instigate or participate in a debate over the justice of laws under which people have been incarcerated. A number of President Clinton’s recent acts of clemency assisted individuals serving mandatory minimum sentences under circumstances that highlight the unfairness such minimums can on occasion produce. Clemency provides an especially powerful statement of a President’s opinion of the appropriateness of such sanctions. One can perhaps imagine President Bush at some time in the future pardoning pro-life activists sentenced under federal statutes that protect access to family planning clinics, in order to serve a similar purpose.

Acts of clemency such as these will of course produce political opposition. Many people favor ever tougher sentences in the war against drugs, and the clash between pro-life and pro-choice convictions is a staple of our politics. I am not aiming to declare either side of either debate the morally superior view, but rather to point out that congressional review of pardons will reduce unpopular acts of clemency, either in situations in which they are unpopular enough to be overruled during the review, or because Presidents choose not to incur the political risks. (It is one thing to pay a political price for an effective action. That same price can well be too steep if the action risks ultimately being ineffective because it is overturned by others.) In advance, one simply cannot determine which unpopular clemencies will come to be seen as statesmanlike acts of courage. What one can determine is that subsequent congressional review will lessen the number of unpopular clemencies granted by Presidents, costing the country some acts of courage as the ineluctable price to be paid for intercepting some abuses.

Congressional review will also impair the ability of the President to act with dispatch. The fact that the pardon will not be final for 180 days may prevent clemency from being effective when we would want it to be. It may be that national security interests of some urgency require the cooperation of an informant, but the non-final nature of an offered pardon causes the informant to remain silent. It may be that the humanitarian purposes of the pardon are substantially reduced in value by the non-final nature of a pardon. Preston King, for instance, might have been unwilling to risk return to the United States for his brother’s funeral if his pardon had remained non-final for 180 days.

In sum, Congressional review will skew acts of clemency toward the politically popular, away from the politically unpopular, thus reducing the willingness of Presidents to take actions whose merit emerges only with the passage of time. It also reduces the usefulness and value of the power in situations in which urgency seems required. These are not costs that we ought to incur based on our assessment of the recent pardons alone.

Beyond these considerations, Congressional review of pardons also has the adverse consequence of vesting in the Congress a power that will be in considerable tension with the Constitutional design of separated powers. As one means of protecting individual liberty, the Constitution establishes a system of criminal justice in which the Congress enacts the laws, the executive applies the laws, and the judiciary review the factual accuracy of the executive’s judgments. As a general proposition, this set up evinces a belief that legislative bodies are ill equipped to apply and review the application of laws to individual cases. In fact , the prohibitions on both ex post facto laws and bills of attainder, Art. I, § 9, cl. 3, are textually explicit testaments to the belief that Congress should not be able to assess individual culpability and punishment, and that these are tasks which, in the interests of individual liberty, are best assigned to the executive and the judiciary. Congressional review of presidential pardons would involve the Congress in just such tasks. After the facts of an individual’s actions are known, in reviewing a pardon decision, Congress would be placing itself in a position to determine the appropriateness of punishment on an individual basis. While a duly ratified constitutional amendment would make such review constitutional, this would not eliminate the evident tension between the prohibitions on ex post facto law and bills of attainder that such an amendment would create.

Whatever enthusiasm remains for placing Constitutional limitations on the President’s pardon power ought to be dispelled by the prudential principle that amending the Constitution should be a remedy of last resort, adverted to only after other ameliorative options have been exhausted. Here, Congress has by no means exhausted the non-Amendment options available to it.

While Congress lacks the legislative power to place direct limitations on the President’s power to pardon, there are steps it can take that will go some distance in reducing the likelihood of future abuses.

First, insofar as people have objected to the absence of input from victims or their families, prosecutor or trial court judges, Congress can enact legislation making notification of such persons a condition subsequent to the receipt by the Department of Justice of request for a pardon. While I make no judgment here as to the details of S. 2042 from the last Congress, that legislation illustrates such an approach. It may also be that regulations issued by the Department of Justice under existing statutory authority could acccomplish substantially the same objectives.

Second, Congress could also rely upon its power of the purse to prohibit any Department of Justice involvement in the investigation, processing or preparation of documents with respect to any pardon for which such notification had not been given. The Constitution prevents Congress from restricting access by the President to the Attorney General and others with whom he or she may wish to consult, but it can prohibit the expenditure of public funds for activities ancillary to the exercise of the pardon power itself.

Third, as a hortatory measure, Congress could go on record as advising the President not to proceed with any clemency as to which he or she had not received Department of Justice advice on a set of enumerated criteria regarding the worthiness of the clemency. In a similar vein, Congress could urge the President to issue a presidential directive stating his or her intentions to comply with such procedures, and stating that any pardon requests received by the Executive Office of the President should be referred to the Department of Justice for such advice, with an appropriate proviso for exigent circumstances. This would place a burden of public justification on the President for pardons that proceeded through non-standard channels.

Of course, these measures would fall short of preventing the President from exercising the pardon power autonomously. Scholars such as Yale Law Professor Charles L. Black have argued that through the power of the purse the Congress has the Constitutional authority to reduce the President’s staff to one -- but that one could be assisting the President in writing grants of pardon. See Charles L. Black, "The Working Balance of the American Political Departments," 1 Hastings Const. L. Q. 13, 15-16 (1974). Nor would they prevent a determined President from executing a grant of clemency to which the Congress, as well as the overwhelming majority of the American public, would object. Still, I believe such measures would go a long way to ameliorate the difficulties that have prompted these hearings. While I do not share the view that any revisions in statutory law are warranted at this time, should you disagree with me, I urge that measures short of amending the Constitution are the proper steps to take.

Thank you for inviting me to share my views with you. I look forward to answering any questions you may have. I would be happy to work with committee staff to explore any of the non-Amendment options I have suggested above.