One of the few remaining policy questions facing President Obama in his last week in office is who he might pardon on the way out the door.
Obama has released a record number of people from prison through commutations. He recently commuted hundreds of sentences, and Obama’s critics on the right are bracing for a round of controversial eleventh hour pardons and commutations before he leaves on Jan. 20.
“This president has shown a penchant for doing petulant, ideological things in last days of his administration, and letting out some real bad guys — heroes on the left — would be certainly in his wheel house,” said Tom Fitton, president of Judicial Watch, a conservative legal watchdog group.
Pardons and commutations granted in the final hours of a president’s tenure have a long tradition in American politics. But legal scholars and experts who have studied the issue say ethically questionable pardons, such as President Bill Clinton’s pardon of Marc Rich and President Gerald Ford’s pardon of President Richard Nixon, are the exception, not the rule.
P.S. Ruckman, Jr., a professor at North Illinois University and editor of the blog “Pardon Power,” said the conventional wisdom that presidents issue a dump of ethically questionable pardons on their way out of the White House door is a “weak, lame generalization.”
Ruckman also disputed conservative critics who suggested that Obama was likely to grant a Marc Rich-style pardon. Rich was indicated on federal tax evasion charges but was pardoned by Clinton in 2001, on his last day in office.
“If you’re a reasonable betting person, there just isn’t any evidence at all that Obama’s likely to drop a bunch of big names, controversial cronies and friends and family members,” he said. “No matter what anyone things about him on any other front, on this front he’s played it straight.”
Obama has long said that he would follow a uniform process for reviewing requests for pardons and commutations, making decisions on the merits of each case. The president has talked openly about the his disinclination to approve pardons that appeared political in nature, such as the Rich pardon.
But that hasn’t stopped Obama’s opponents from speculating that he might pardon Hillary Clinton, the 2016 Democratic presidential nominee, to protect her from possible future prosecution for her use of a personal email server while she served as his secretary of state. Many Democrats, however, note that Clinton hasn’t been charged with anything, so a pardon makes no sense.
A more recent rumor is that Obama might consider commuting the prison sentence of Chelsea Manning, the former Bradley Manning, who while serving in the military leaked sensitive documents to WikiLeaks.
The presidential power to pardon and commute prison sentences is granted by the Constitution. Obama didn’t use it that often during his first term, but has picked up the pace over the past four years. Sentencing advocacy groups have urged him to use it to provide relief to individuals convicted of non-violent drug offenses.
Mark Kende, director of the Drake University Constitutional Law Center in Des Moines, said the courts treat the presidential pardon as a “political question.” In other words, something outside of their ability to intervene and either halt a pardon or overturn it.
The power of the pardon serves a valuable purpose, despite how politically charged the issue has become, Kende said. In the law, it creates a mechanism for showing mercy and recognition that an individual has served enough time in prison and should be given a chance to rejoin society.
It also provides society with a legal way to avoid political conflict or cultural division that could be harmful. Ford, when he pardoned Nixon in 1974 from any criminal liability or prosecution for his role in the tumultuous Watergate scandal, said he did so, so that the country could recover.
“Most pardons are not like that,” Kende emphasized.
