COLUMN: Who’s on the pardon menu?

By Mary Maxwell, Ph.D.
Thu Nov 20, 2008, 05:00 AM EST

Marblehead - It is the season to start predicting who might be the lucky recipients of 2008-9 pardons.

The Constitution allows a president to pardon any person of any crime against the United States. Governors have a similar power for state crimes, though in some states they are required to take advice from an executive council or a state legislature. Between now and Jan. 20, 2009, we can expect President George W. Bush to use his virtually unlimited power of pardon.

Can a president pardon members of his or her own family? Yes. Nepotism is frowned upon, but constitutionally there is nothing to prevent a family gift of pardon.

Can a president pardon himself or herself? No. The framers of the Constitution developed their ideas from English common law, and there is no tradition of self-pardon there. In our system, it would be seen as claiming that the president above the law.

Can a prospective pardon be given to a person that has not yet been convicted of, or even indicted for, federal crimes? Yes. Ford pardoned Nixon that way in 1974. The elder President Bush followed suit by pardoning the not-yet-convicted secretary of defense, Caspar Weinberger, on Dec. 24, 1992. It was assumed that he did so because a hearing on the Weinberger case that was scheduled for February 1993 may have revealed the crime of drug importation in the Iran-Contra affair.

In that instance, leaders in Congress, including Speaker of the House Tom Foley, D-Wash., and Tip O'Neill, D-Mass., were consulted before the pardon was given. According to the Washington Post of Dec. 29, 1992, Foley said he would not recommend a pardon for Weinberger but would not speak against it — an unusual instance of cross-party cooperation!

When our Constitution was being drafted in 1787, and also when ratifying conventions were held in the original 13 states in 1789, much was made of the fact that it is wise to have a provision for mercy, by way of executive pardon. This is not to say that our forebears were unaware of mischievous uses to which the pardoning power could be put. Delegates from Virginia and Pennsylvania wanted to prohibit pardon in cases of treason. They were outvoted, however, and so the wording of Article II, Section 2, is “The President… shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.â€