The president’s pardon power: all over the map

Horace Lurton was a bright lad, energetic and industrious. It was no small wonder that he’d be promoted to sergeant not long after enlisting in the Confederate Army. After his capture he escaped, and joined Morgan’s Raiders, a band of rebels that sacked union infrastructure in Ohio and Indiana. Depending on how you look at it, they fell somewhere between al-Qaeda and Hogan’s Heroes. Lurton was captured again and this time was imprisoned on an island on Lake Michigan for aiding the insurrection. By his own account it was his mother who begged a presidential pardon out of Abraham Lincoln, conditioned on his assurance that he quit soldiering and go to law school instead. So, he went to what is now Stamford in Birmingham, Alabama, and served alongside William Howard Taft on the 6th Circuit Court of Appeals. Taft later appointed him to the U.S. Supreme Court, making him the only ex-con ever to get the job.

President Donald Trump’s pardon of Sheriff Joe Arpaio accounts for this week’s chorus of screams and reminds us that the pardon power is limitless and potentially unjust and dangerous. But Trump did not invent the dubious pardon. Thomas Jefferson pardoned Dr. Erick Bollman so he could testify against his enemy Aaron Burr. Harry Truman sprang notorious Louisiana grafter “Big George” Caldwell. Bill Clinton pardoned Marc Rich, a tax cheat who did illegal business with Iran, but donated some of his ill-gotten gains to causes of Bill’s liking. Like anything else triggered by caprice, the history of the presidential pardon runs the gamut from goodly to gross.

The list of the forgiven is, to put it mildly, eclectic. Brigham Young, Jimmy Hoffa and Jefferson Davis, all made it, as did Eugene V. Debs, Tokyo Rose and Marcus Garvey. The motives behind each of these absolutions vary, but four major categories pop up from a perusal of the roster.

The first is good old-fashioned forgiveness arising from a sense that the punishment just plain old didn’t fit the crime. Tokyo Rose was a disc jockey with a sexy voice, who was utterly unsuccessful at inducing desertions. Warren Harding, a genuinely nice guy, had no troubling grasping what Woodrow Wilson, a jerk, couldn’t: that Debs was behind bars for nothing more than speaking his mind. Harding made it a point to pardon Debs so he could be home by Christmas. And Dr. Samuel Mudd, a well-known Confederate sympathizer was nonetheless obligated by his Hippocratic Oath to reset John Wilkes Booth’s broken leg. Harry Truman commuted the death sentence of Oscar Collazo, which is pretty forgiving, because he tried to assassinate him.

The second motivation springs from a sincere belief in the unfairness of the law. Barack Obama has commuted the sentences of non-violent drug offenders whose terms were extended because they sold cocaine you smoke instead of sniff. Thomas Jefferson knew the Alien and Sedition Acts were nothing but political payback, and commuted the sentences of offenders accordingly. John Kennedy pardoned every first-time offender convicted under the Narcotics Control Act of 1956. And FDR was cheered by the locals in Seattle when he gave a get out of jail free card to Roy Olmstead: “the good bootlegger.” Olmstead never sold watered down booze, and wouldn’t permit his men to carry weapons because he thought a human life was worth more than a truckload of hooch. Unlike the Al Capones of the world, he refused to expand into drugs, racketeering or loan-sharking. But the feds had it out for him because his organization was so well run. They shut down his wife’s kiddie show on the radio because they thought she was using it to deliver coded messages. When he was convicted based upon wiretap evidence the high court gave us U.S. v. Olmstead. Cops have been splitting wires and lawyers have been splitting hairs ever since.

The last of the good reasons is to bind up the nation’s wounds. Andrew Johnson and U.S. Grant took Abe Lincoln’s sentiment “with malice toward none, with charity for all” to heart and commuted the sentences of thousands of confederate soldiers and politicians, including Jefferson Davis, who wound up in the insurance business in St. Louis. Draft resisters were pardoned by Harding after World War I and by Truman after World War II. Jimmy Carter did the same for Vietnam draft evaders not long after taking office. He also exonerated Dr. Mudd. Gerald Ford considered it best to spare the country the third-world-like spectacle of a presidential trial by pardoning Richard Nixon. He wanted “our long national nightmare” over. When he signed it, he signed his own political death warrant.

Plenty of presidents have invoked Article II, Section 2 for reasons far less than noble. Clinton pardoned his half-brother, as well as Susan McDougal, a reputed paramour who was held in contempt for not squealing on him in the Whitewater investigation. Nixon pardoned Lt. William Calley, the triggerman of a war crime at My Lai, who was just following orders and took the rap for higher-ups. He also sprang Jimmy Hoffa, who once arranged for Nixon to purchase a home in the swanky Truesdale Estates section of Los Angeles at a “celebrity discount.” The Teamsters endorsed Nixon when he ran for re-election.

Never to be overlooked are the pardons that don’t happen. There were worldwide calls for clemency on behalf of anarchists Nicola Sacco and Bartolomeo Vanzetti executed ninety years ago. The same was true of Julius and Ethel Rosenberg, the only spies ever executed during peacetime. Presidents Calvin Coolidge and Dwight Eisenhower kept their pens in the inkwells.

Presidents normally announce pardons at the end of their terms or close to Christmas, because they are inherently controversial. Trump announced the Arpaio pardon at a loud campaign-style rally: for the very same reason.