This essay examines the concept of clemency and the constitutional pardoning power granted to the President of the United States. Beginning with a broad definition of clemency rooted in notions of mercy and forgiveness, the paper traces the historical use of the pardon power and reviews two major modern controversies: Bill Clinton's last-minute pardons in 2001 (dubbed "Pardongate") and George W. Bush's commutation of Scooter Libby's sentence. Drawing on the Framers' original intent, the essay argues that the presidential pardon remains a vital check on judicial excess and that, despite occasional abuse, the power should be preserved rather than eliminated or restricted.
This essay discusses and explains the concept of clemency in its various forms. Central to the discussion is the question of whether the pardoning power of presidents should be eliminated, changed, or reduced. The author is opposed to such changes and sets out the reasons for this position in the analysis below.
The concept of clemency itself is something that humanity has sought for centuries. The concept of forgiveness and mercy is foundational to most religions, and this translates into the secular realm as well. A dictionary definition of clemency is: "1) a disposition to show mercy, especially toward an offender or enemy, or 2) a merciful, kind, or lenient act (Clemency, 2011)."
To define and explain clemency and then extend it to the presidency, one should also consider what it means to the U.S. Department of Justice (DOJ), which defines the requirements for an application for clemency to the President of the United States. While individuals who hold the ultimate power of clemency — such as the President — may exercise it as they see fit, the DOJ requires a formal application ("Rules governing petitions," 2011). Clemency is therefore something a person typically seeks formally, rather than something granted spontaneously.
Presidents have frequently exercised the power of pardon granted to them by the Constitution, which states: "The President … shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment ("The pocket constitution," 2010)."
Why, then, is there controversy? The popular perception of the pardon is that it is granted at the eleventh hour before the end of an administration, or for some nefarious purpose or as a personal favor. This was not the case during most administrations, where clemency was normally granted to individuals throughout a president's term. However, Bill Clinton's administration drew sharp criticism because of the alleged nature of his pardons and acts of executive clemency. They were granted on January 20, 2001, the eve of the inauguration of the incoming Bush administration. The acts of clemency at this eleventh hour were collectively dubbed "Pardongate" in the press and became the initial source of the present controversy over presidential pardons — a subject that had rarely entered serious public debate before ("Notable pardons," 2004). It was then that calls for limitations on this power began to receive serious attention.
"Pardongate and Scooter Libby commutation controversies"
"Framers' view of pardon as judicial check"
The founders of this country possessed a great amount of wisdom and insight into government that has been rarely equaled in human history. We should, by and large, keep things the way they are. Our politicians and statesmen of this generation are amateurs compared to the founders. In exceptional situations, the executive branch should retain the ability to grant clemency. Normally, the DOJ process is followed. The small amount of abuse of the system does not warrant changing it at this time.
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