Pardon Power

Good morning, it’s Tuesday, October 17, 2017. A few discerning readers noticed that the two events I cited in yesterday’s note (the 1989 Loma Prieta earthquake and an 1823 letter from James Monroe to Thomas Jefferson) actually occurred on today’s date, not October 16. Forgive me of that lapse. I was in San Francisco for the 1989 “Bay Bridge” World Series when the quake struck; apparently, I’m still rattled by it.

Many other events happened on this date in American history, however, including Gerald R. Ford’s historic testimony to Congress on why he pardoned Richard Nixon.

The broad and encompassing power of U.S. presidents to issue pardons and clemency orders is delineated in the Constitution and enshrined in case law by the U.S. Supreme Court. To this day, the controlling legal authority comes from an engrossing1872 decision, Klein v. United States.

In one sense, the specific set of facts at issue were mundane: Should the government reimburse the estate of a merchant whose stores of agricultural goods were requisitioned by the U.S. Army during wartime? It wasn’t a trivial amount of money at stake. The merchandise at issue was 664 bales of cotton with an estimated value of $125,000, or nearly $2.4 million today. Still, this was just a property dispute, right? Wrong. The Klein case arose out of the Civil War and went to the heart of what kind of peace would reign afterward — and who would administer the terms of Reconstruction, Congress or the president.

It began during Gen. Ulysses Grant’s siege of Vicksburg when the Army seized those 664 bales from warehouses owned by a Mississippian named Victor F. Wilson. Although Wilson died six months after the Civil War ended, his heirs were seemingly entitled to recompense because of two actions that took place in Washington,, D.C., during the war.

The first was a statute enacted by Congress on March 12, 1863 and amended in July of 1864, calling for reimbursement for property seized and subsequently sold off by military authorities during the war. The second was a December 8, 1863 proclamation by the commander-in-chief, in which Abraham Lincoln offered a pardon to any Confederate sympathizer or soldier willing to forgo the rebellion and swear allegiance to the United States of America.

In 1866, the lawyers for Wilson’s estate went to court under the congressional reimbursement provision seeking recompense. Here the plot thickened. U.S. government lawyers learned that the cotton hadn’t initially been seized by the U.S. Army, but by the Confederate Army. True, Union troops wound up in possession of it, but only because they’d sacked Vicksburg. Wilson himself had given it freely in return for Confederate bonds. In so doing, he “did give aid and comfort to the rebellion,” a federal claims court noted. And though this brought into question the oath he signed to obtain Lincoln’s pardon, his heirs were not party to this perfidy, so they stood to be reimbursed anyway.

This legal loophole enraged Republicans in Congress, who argued that merely accepting a pardon was proof of previous guilt. They passed a law stating that Lincoln’s pardon of former rebels was to have no bearing on cases before the wartime claims courts. A different kind of battle had been joined. No longer a property dispute, this became a separation of powers case, and it went to a Supreme Court headed by Salmon P. Chase.

Salmon Chase was a New Hampshire-born lawyer and ardent abolitionist who’d been governor of Ohio and was a founding member of the Republican Party. He’d sought the party’s presidential nomination in 1860, losing out to Lincoln and had served in his rival’s Cabinet as secretary of the Treasury. Lincoln had appointed Chase as chief justice only four months before being assassinated. And in early 1872, only a year before his own death, Chase led the high court in upholding the president’s prerogative. “To the executive alone is entrusted the power of the pardon,” Chase wrote, “and it is granted without limit.”

Donald Trump’s pardon of a controversial Arizona sheriff — not to mention his mumblings about pardoning family members, or even himself — has roused outraged liberal legal scholars into formulating new curbs on the president’s authority.

In so doing, however, they are arguing not only with Abe Lincoln and Samuel Chase, but with Bill Clinton — who cited Klein to defend his 2001 midnight pardons of several pals — and Jerry Ford. Thirty-one days into his presidency, Ford employed that prerogative in a way that would compromise his chances of being elected in his own right two years later.

In their re-telling of the Watergate story 40 years after the fact, former Washington Post reporters Carl Bernstein and Bob Woodward have both related Bernstein’s impassioned response upon learning that Ford had issued a preemptive pardon to Nixon.

“That son of a bitch pardoned the son of a bitch!” Bernstein told his colleague.

He wasn’t the only one who felt that way. The White House switchboard lit up with angry phone calls. Democrats in Congress swiftly passed resolutions calling on the president to refrain from issuing any Watergate pardons until the defendants had been tried, convicted, and their appeals exhausted. Some Democratic House members wondered aloud about whether Ford and Nixon had struck this deal before Ford was chosen as vice president.

No evidence of any such thing has ever emerged. And Ford’s explanation that he gave Congress on this date in 1974 never varied: He wanted to put Watergate behind us all and get on with the business of governing the country. In time, Ford won over his critics, who noted that he compromised his own chances at winning in 1976, and knew he was doing so. Among those who came around to the belief that Ford had performed a patriotic deed was the indefatigable Washington Post duo.

“It turns out it really was a courageous and necessary act,” Bernstein said a few years ago. “Gerald Ford, I think partly by being a member of Congress before he was vice president, understood how necessary it was for the system no longer to be so enmeshed in Watergate.”

Carl M. Cannon
Washington Bureau chief, RealClearPolitics

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