Thursday, July 17, 2008

The President: Any More Pardons in the Mix?

As we go into July, it has been over a half a year since the President has granted a single pardon or commutation of sentence. There have two other stretches this long, during his first term and, well, there is some room for concern in the minds of many. Will the pardon power be on the table again before Bush leaves office? Will there be any more clemency headlines produced by this administration? I think the answer is "yes." Here are the reasons why:

1. HISTORY: Most (as in a majority) of our Nation's presidents have granted the highest number of pardons in the last year of their term. This number includes: Washington (2nd term), Adams, Jefferson (1st term), Madison (1st and 2nd terms), Monroe (1st term), Jackson (2nd term), Polk, Buchanan, Lincoln (1st term), Grant (1st and 2nd terms), Arthur (succession term), Cleveland (1st and 2nd terms), Harrison, T. Roosevelt (succession term), Taft, Wilson (1st and 2nd terms), Coolidge (1st term), Hoover, F. Roosevelt (2nd term), Eisenhower (1st and 2nd terms), Ford (succession term), Reagan (2nd term), Bush, Clinton (2nd term) and Bush (1st term). Many of the other presidents, who granted a higher number of pardons in years one through three, engaged in pardon splurges in their last days and weeks in office.

2. TREND: If you look at the trends in President Bush's clemency grants, there is a distinct increase across the term. No, Bush is not granting hundreds and hundreds of pardons. But the trend upward is clear enough. You would have to say, at this point, he will go the way of most of his predecessors.

3. TREND: If you look at the distribution of the Bush pardons by month, you can see that December is clearly the highpoint for such activity. And, of course, we have one more December to go. Incidentally, the same pattern is evident in the administrations of several recent presidents: Ronald Reagan, Richard Nixon/Gerald Ford, Jimmy Carter, George H.W. Bush and Dwight Eisenhower. But for one heck of a last-minute pardon dump (in January), Bill Clinton would be in the list as well. From 1789 to 1932, the month of Juy was quite popular.

4. CONVENTIONAL WISDOM: The CW says that presidents drop "controversial" pardons at the end of the term, To be sure, the historical record provides some great examples of the kind of behavior. On the other hand, PardonPower is aware of no empirical evidence whatsoever that suggests "controversial" pardons are, in fact, saved for the end of the term. If anything, such pardons might simply receive a little more attention, or generate more frustration or anger in political opponents. Nonetheless, Clinton may have provided some latitude on all of this. After all, how interested will the Democrats really be about roasting the president for controversial pardons?

5. THE LIBBY FACTOR: This is the time of the term when presidents speculate about their legacy. Or, at least this is what the media would have us believe. While September 11 and the War on Terror are certainly going to overshadow everything else about this administration in the history books, there remains this question: When all is said and done about President Bush and his use/non-use of the clemency power, does he want to be remembered solely for the Scooter Libby commutation? Looking back, does he want that to be his single, prominent use of this power? I think it is very possible that the answer will be "no."

6. ONE-UPSMANSHIP (PLAN B): PardonPower finds it plausible to also think that, given the roar in the aftermath of the Clinton administration, President Bush might very well find it personally satisfying to grant a few pardons near the end of the term with little or no controversy, as if to say, "Here is how it should be done." So, imagine the impression a relatively large number of grants would be to 1st time offender, non-violent criminals who have served out their sentences and have simply had to wait in line. Maybe Bush could even pardon the several hundred whose applications were recommended for clemency (by the Justice Department) at the end of the Clinton administration! Now that would be a quality stunt.

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