Friday, May 19, 2017

Presidential Pardons and the Question of Justice

by Nomad

As reported a couple of months ago, one of the last official acts of President Obama was to commute the remainder of Chelsea Manning's 35-year sentence.
On Wednesday, Manning walked out of the military prison at Fort Leavenworth, bringing to a conclusion, as the New York Times called, "one of the most extraordinary criminal cases in American history over the leaking of government secrets to the public."

Manning and Snowden

The other day I was reading an online discussion regarding the subject of presidential pardons. Specifically, the topic was whether President Obama was right in pardoning Chelsea Manning and not pardoning former National Security Agency contractor  Edward Snowden. 

Snowden, who currently lives in exile in Russia,  faces charges under the Espionage Act of 1918, a law the constitutionality of which has been contested ever since it was enacted. 
Among other things, that law makes it a crime to convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies during wartime.  

The campaign to pardon Snowden picked up momentum after Oliver Stone's film but sputtered and ran out of gas. Indeed, all members of  House Select Committee on Intelligence, (13 Republicans and nine Democrats, ) sent a letter to the White House urging against a pardon for Snowden.

It was one of those ethical questions that Obama faced in his tenure. He explained his reasoning in an interview with Der Spiegel.  
"I can't pardon somebody who hasn't gone before a court and presented themselves, so that's not something that I would comment on at this point..

I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.

At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I've tried to suggest -- both to the American people, but also to the world -- is that we do have to balance this issue of privacy and security.

Between Commutation and Pardon

The man who directs the Pardon Snowden campaign is also the communications strategist for the ACLU's Center for Democracy, Noa Yachot. He was not particularly impressed with Obama's rationale. 

A president can pardon whomever he wishes. Yachot noted that Presidents in the past have issued pardon despite the fact that the courts were not involved. On his first day in office, Jimmy Carter, he said, unconditionally pardoned thousands of men who had evaded the Vietnam War draft. 
In Obama's case,  Yachot is correct to say that  it is a matter of "won't" and not a case of "cannot." But then, a pardon has always been at the discretion of the president. 

There's a finer point that Yachot ignores: the legal distinction between a commutation of a sentence and a presidential pardon. A commutation reduces the sentence, either totally or partially. It doesn't change the verdict nor the criminal conviction.
To be eligible to apply for commutation of sentence, a person must have reported to prison to begin serving his sentence and may not be challenging his conviction in the courts.
Manning has not only served time for his crime, he has expressed his remorse. Snowden has done neither.

A pardon, on the other hand, is an expression of the President’s forgiveness and is therefore, up to the conscience of the president. Normally,  and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence. It does not signify innocence.
But does it signify guilt? Normally, yes, but not necessarily.

Without Conviction or Indictment

As support for his argument that a pardon need not require a courtroom or prison, Yachot cited the most famous example of presidential pardoning: President Gerald Ford's pardon of disgraced Richard Nixon.
"Richard Nixon hadn’t even been indicted when Gerald Ford issued a 'full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in' over the course of his presidency."
All that is true. But, there's something else that Yachot didn't mention. I it was also one of the most controversial presidential pardons in US history. Critics had every right to deride Ford's decision. They called it a "corrupt bargain" and that wasn't just hyperbole. 

Ford had risen seemingly overnight from a Republican Congressman of good standing, to House Minority Leader to Vice President and finally to president.
Those last two steps, it should be added, took slightly less than a year. He was, in fact, the only president who took office without running for the position, either as a president or a vice-president.

The already deeply suspicious public had mixed feelings about the transition of power. What was really going on?
Questions naturally arose whether his extraordinary rise to the highest office did or did not reflect a clandestine agreement between Ford and Nixon. Ford's pardon was, many claimed, part of this agreement. On October 17, 1974, President Ford testified before Congress on the pardon, the first that had happened since the Lincoln administration.
In his own defense, Ford was adamant. To any suggestion of a quid pro quo arrangement, Ford said, "There was no deal, period, under no circumstances."

Not everybody was convinced. Bob Woodward, claimed that this idea was cooked up by none other than Nixon's Chief of Staff Alexander Haig. It was to kill two birds with one stone. Nixon could resign without fear of prosecution, retaining both what was left of his dignity and his presidential pension. At the same, the country could start forgetting the traumatic experience. "Putting it all behind us" was the useful phrase on Republican lips. 

That's not to say that there was no fallout. Most historians believe that this decision was seen by most voters as Tricky Dick's last thwarting of justice. Nixon's final word on the idea that he, as president, was above the law.  If Nixon was out of reach of the justice system, then voters gave their own verdict in the 1976 election. When his re-election went down in flames, Ford's presidency was not asked for a return engagement.   

The New York Times, in an editorial at the time, concluded that Ford's pardon of Nixon was "profoundly unwise, divisive, and unjust act" which cost Ford the "credibility as a man of judgment, candor, and competence."

The victory of Jimmy Carter -the epitome of the untainted political outsider- was largely based on the general public disgust and outrage of Republican corruption. This was John-boy Walton comes to Washington. A man of deep personal convictions captured the bitter mood of the nation.   

Burdick and the Acceptance of a Pardon

For his part, Ford privately justified his pardon of Nixon with the rather pathetic gesture of carrying in his wallet a portion of the text of the 1915 Supreme Court decision in the case of Burdick v. United States.

That case revolved around a newspaper editor who refused to provide the name of a source. President Wilson attempted to defuse the situation by issuing a presidential pardon. Rather surprisingly, the defendant refused to accept the pardon.
Burdick had his reasons though they might sound quaint to our ears. He stated that by doing so, he would be accepting his guilt. He had, he said, done nothing wrong, and no court had found him guilty. Therefore, to accept the pardon would violate his  Fifth Amendment rights against self-incrimination. 

If a pardon is rejected, it cannot be forced upon its subject. Why not?
Because there is a critical difference between legislative immunity and an unconditional pardon. A pardon was "an act of grace" granted by the authority which "exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed."
The court decision ruled that a pardon does indeed carry "an imputation of guilt and acceptance of a confession of it."
It seems, therefore, wrong to exercise the executive right of pardon for anybody who denies that he has committed a crime whether that means before a court or by confession.  

Legal scholars point out, however, that the Court in the Burdick case declined to address the question of whether the pardoning power may be exercised before conviction.  

It was by this slimmest of loopholes in the law that Gerald Ford was able to rationalize (mainly to himself) the Nixon pardon.

Time has a way of smoothing the rough edges of history- especially political history- and this is a fine example of that. In our time, the consensus opinion of historians seems to be that Ford did the right thing. In fact, in 2001, the John F. Kennedy Library Foundation awarded the John F. Kennedy Profile in Courage Award , which celebrates the courage to defy the majority and follow one's conscience- to Gerald Ford and his decision.

In the Name of Justice

As far as the Manning/Snowden debate, Obama stood firm in his decision. It would have been grossly unfair to pardon Manning who was forced to spend years in prison- much of it in solitary confinement- and also pardon Snowden who had no endured the public humiliation, the stripping of his liberty, the hostile courts nor any time at all of imprisonment.

Those days of high-minded ethical debates are long gone in the era of Trump. According to the statements of candidate Trump in 2016, exiled Snowden has little chance of ever being pardoned. Trump called Snowden  "a “total traitor” because of his release of highly classified information and said he “would deal with him harshly.”
He boasted that by virtue of his commanding presence, he could induce Russian President Putin to hand over Snowden when he was president.
“If I’m president, Putin says ‘hey, boom — you’re gone’ — I guarantee you that...And if I were president, Putin would give him over. I would get along with Putin. I’ve dealt with Russia.”
When asked why Putin has refused to discuss extraditing Snowden under Obama, Mr. Trump said.
“He would never keep somebody like Snowden in Russia — he hates [President] Obama; he doesn’t respect Obama. Obama doesn’t like him either. But he has no respect for Obama, has a hatred for Obama, and Snowden is living the life."
That situation has not changed since Trump became president. The "traitor" who worked with the Russians and gave away classified information, is, at least for the moment, free.

I am speaking of Snowden, of course.