It's the pardons, stupid

Posted: Mar 04, 2001 12:00 AM
WASHINGTON--Six weeks into the anti-Clinton firestorm, it is time to step back and ask: Why exactly has everyone--former friends and supporters included--turned so furiously against him? OK. So the Clintons tried to make off with everything but the White House toaster. Is that what sent everyone over the edge? No. It's not the furniture. It's not the bridal registry. It's not the Carnegie Hall penthouse. It's not the Inauguration Day grandstanding. It's not the 11th hour plea-copping on his Lewinsky perjury. It's the pardons, stupid. The pardon power is special. The American people feel it. Bill Clinton, oblivious as he was to the reverence due every other perk and power of his office, from the Lincoln bedroom to the Oval Office, was supremely oblivious to the sacredness of this one. The pardon power is sacred because it is the moral equivalent, in mirror image, of the death penalty. The death penalty--final, irreversible--is the ultimate in punishment. The pardon--final, irreversible--is the ultimate in absolution. Condemnation and cleansing: There are no powers greater. In both, a civil authority is invested with God-like power: On the one hand, the taking of a citizen's life; on the other, the resurrection of a citizen's moral and civic life. In Federalist 72, Alexander Hamilton twinned the pardon power with ``the command of the military and naval forces,'' i.e. with the life-and-death power that military commanders enjoy. Its civil equivalent is, by logical extension (though not mentioned by Hamilton), capital punishment. Think of the state's power over you as a spectrum. In the center is the zero point. The state just leaves you alone. To the far end of one side is capital punishment, where the state extinguishes you. To the far end on the other side is the pardon power, where the state restores you. The pardon power is more profound absolution than mere acquittal at trial. Acquittal, too, is irreversible, but it merely confirms the accused in his original state of innocence, which is assumed always--even through a trial--until guilt is proven. The pardon, on the other hand, is the radical erasure, the transcendence of guilt as established precisely by that same ordered legal system. It is because both the death penalty and the pardon possess such finality and God-like sacredness that over the generations both became encrusted with elaborate procedural safeguards. And it is precisely those safeguards that Clinton wantonly violated. The death penalty is subject to endless review and reconsideration. The bureaucratic process can go on for decades. The review of pardon applications is not quite as elaborate. There too, however, the ritual of review and appeal is well established, not only to help avoid error and misjudgment, but to reinforce the sanctity of the awesome power wielded. Hence the revulsion with Clinton's last-minute pardon orgy. It is not just the corruption involved in (BEG ITAL)who he pardoned--unrepentant fugitives, political supporters, relatives and associates. It is the vulgarity of (BEG ITAL)how he pardoned. He ignored, indeed consciously avoided, the normal Justice Department review. Instead, in a chaotic adolescent all-nighter, approached by low-life pleaders (his brother and brother-in-law) and high-life feeders (Beth Dozoretz, Denise Rich), he handed out pardons the way a precinct captain hands out post office jobs. The pardon power, a monarchial holdover, seems arbitrary and capricious. But there are two good reasons for it. One is mercy. Some individuals may be too harshly punished because the law is a crude instrument that necessarily groups offenders by category, sometimes arbitrarily. The other reason is social peace. Hamilton cites the case of treason. More generally, however, the purpose is to assuage deep national rifts. Hence Lincoln's Civil War pardons, Harding's of Eugene V. Debs and Carter's of Vietnam draft dodgers. In the Rich case, as well as those of Almon Braswell, Carlos Vignali, and the four Hasidic Jews convicted of defrauding the government, none of these reasons apply. These were not criminals unjustly punished. Nor did they represent adherents to some political cause deserving reinclusion in the American polity. They were friends of friends, or just friends of money. That is why the Clinton pardons caused such a volcanic reaction. One can argue--people still passionately argue--whether the Nixon pardon was wrongly decided. But it was clearly offered--like Lincoln's--as a good faith way to end a divisive political chapter and heal deep political divisions. The worst you can say about Ford is that he made a bad judgment. For Clinton, that defense rings hollow. It was not bad judgment. It was sacrilege.