Tuesday, May 25

The Uneasy Practice of the Political Pardon

This is one of a series of occasional posts dealing with the notion of forgiveness. Its prevalence in contemporary French philosophy is what drew my attention to it.
Anyone who follow presidential politics is reminded every four years or so of the uneasy heritage of forgiveness. This happens when the president proceeds to grant "pardons" to convicts of various stripes, many of whom are powerful individuals on behalf of whom the president's pardon is beseeched by various associates and, in some cases, lawyers and prominent politicians. Extenuating circumstances, reparations, public manifestation of repentance, improved behavior: every possible excuse is assembled to persuade the one sovereign decision-maker that the normal course of criminal and punitive justice should be suspended. What invariably happens is that the presidential privilege to grant pardons which, as law, does nothing less than to disrupt law itself, brings a chorus of scorn and outrage upon the president, and not only from opposing party members. The absurdity of this situation is only heightened by its predictability.

Recall, for instance, the intense debate that erupted when it was announced that President Clinton had pardoned the so-called commodities trader Marc Rich, a man convicted for tax evasion, fraud and conspiracy, racketeering and illegally trading with Iran--a man who had for twenty years lived in Europe beyond the pale of U.S. prosecutors. Indeed, this debate lives on as part of Clinton's "legacy," as evidence by a recent Air America Radio satirical skit that grants Clinton a "profile in courage" for his having pardoned Rich.

This assault on the president's pardons is odd if one considers that, according to Article II of the U.S. Constitution, the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Thus, the pardon can apply to any crime other than that for which a president would have been impeached; moreover, it insists upon no pre-conditions such as the innocence of the one accused or excusability of the offense. A sweeping power, indeed, its application is not even subjected to judicial review (which becomes another habitual point for which the president is attacked). Indeed, the president need not consult anyone in deciding which pardons to grant (although the number of pardon requests alone normally requires the president seek counsel in decision-making). In this, the president is not asked to do a judge's or jury's job better; rather, the president is given the power to interrupt all legal pursuits with respect to charges already laid or upheld in a court of law. Like forgiveness, which nonetheless remains distinct from this political power, the presidential pardon is in one sense foreign to legal or juridical sovereignty. (In another sense, it is upheld by the legal sovereignty it contravenes.) Thus, clearly, President Clinton, as others before him, only acted in accordance with the Constitution. In the last three years, there have been many executive decisions that were far from being as clearly constitutional as Clinton's pardon of Rich was, yet the issue of pardons seems like few others to unleash a wave of confused and misplaced criticism upon the president.

The arguments were long and bitter over whether Marc Rich deserved to be pardoned. The curiously elementary fact that is always lost in such debates, however, is that not only was the President acting in accordance with the Constitution but, properly speaking, no one ever deserves to be pardoned or, for that matter, forgiven. If forgiveness, or a pardon, could be earned by the excusability of the offense, then one could simply declare the charges null and void (in a situation the French call a "non-lieu"). In such cases, there was perhaps a misunderstanding, a freak act committed out-of-character, a matter of confusion or misinformation, an act now of mere historical importance, but nothing as serious as to call for a presidential pardon or, more serious still, forgiveness.

President Clinton only fueled criticism of his action by trying to defend his pardon of Marc Rich. (Clinton listed a number of distinct reasons for this one pardon.) Indeed, he seemed at a total loss to understand the notion of presidential pardon. On the day after he had granted 140 pardons, Clinton said: "The word 'pardon' is somehow almost a misnomer... You're not saying these people didn't commit the offense. You're saying they paid, they paid in full."


The point here is that the ambiguity that leads to this sort of confusion and rancor every four years on the American political stage is planted within the heritage of the language of forgiveness. In this heritage, which at the very least begins with the Hebraic traditions of Judaism, Christianity, and Islam, one finds competing and contradictory demands.

On the one hand, the demand that one forgive only when the one at fault has asked for forgiveness, repented, healed, etc. The question that haunts this conditional logic is whether, in having changed in such a way, the candidate for forgiveness is entirely the same as the one who did the misdeed, and whether, therefore, the act of forgiveness is indeed necessary, and, if it is necessary, whether it even hits its mark.

The other demand is that one forgive without first setting conditions; that is, in the absence of repetance, and without assurance or even hope that the misdeed be committed again. In this sense, the presidential pardon, while it is distinct from "forgiveness," seems to descend from the unconditional logic that is part of its heritage. Not only is this second, unconditional logic, difficult to assume, since it might require me to, for instance, forgive one who I know will swiftly proceed to kill me, it is itself rendered problematic by the very assertion of power that it implies. That is, in forgiving unconditionally, I nonetheless presume a certain sovereignty over the one whom I would forgive, which is to say, I presume the power to punish, which my act of forgiving suspends. The question, then, is whether in having such a power at my disposal, I have not already compromised unconditional forgiveness with the condition of my own supremacy. In this sense, unconditional forgiveness cannot escape from being haunted by the plague of ulterior motives that are common to the first logic, not the least of which is that of satisfying my own conscience by thinking of myself as forgiving. To pardon in the presidential sense especially when the pardon is not deserved, as every president most certainly does in pardoning convicts, certainly heightens the power of the executive office, whether or not the president feels elevated by his or her actions.

It is a curious situation when a presidential power guaranteed by the Constitution is apparently understood by neither the president nor by those who regularly criticize its use. We cannot expect President Bush to have any greater command of this notion than to recognize in it an executive privilege, but it's worth interrogating, before Bush proceeds to grant pardons en masse (assuming he will), both the etymology of the word and, to a degree, the (massive) history of the corresponding notion, so as to grasp the complicated overlapping of logics within the heritage of the language of forgiveness and pardon.

I thought would get closer to doing that today. The political context-building got in the way. I will pick up the discussion in a future post by returning to my reading of Alain Gouhier's thesis concerning the origin of "pardon" in Latin and the Romance languages in particular.