The presidential power to pardon or commute is a feature of our system that rarely receives media coverage. It is now in the news, thanks to the Libby commutation. It seems to me that more than a few commentators are unaware of the function that it was intended to serve, and I think that some of their rhetoric has been a bit careless. Accordingly, I thought it might be worthwhile to outline why the Founders saw fit to include it in Article II of the Constitution.

In The Federalist #74, Alexander Hamilton writes:

[The President is] to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

What is Hamilton on about here? His argument is that some entity should have the power to carve out exceptions to the rulings of the judiciary. Otherwise "justice would wear a countenance too sanguinary and cruel." The best entity for this, argues Hamilton, is a single person. A single person will be more attuned to the sympathetic concerns that the Framers want to inject into the judicial process. Furthermore, a single person will be solely responsible, and thus feel compelled to be as judicious as possible.

This is a theme that the great American jurist, Justice Joseph Story, expands upon in his Commentaries on the Constitution. He writes:

The common argument is, that where punishments are mild, they ought to be certain; and that the clemency of the chief magistrate is a tacit disapprobation of the laws. But surely no man in his senses will contend, that any system of laws can provide for every possible shade of guilt, a proportionate degree of punishment. The most, that ever has been, and ever can be done, is to provide for the punishment of crimes by some general rules, and within some general limitations. The total exclusion of all power of pardon would necessarily introduce a very dangerous power in judges and juries, of following the spirit, rather than the letter of the laws; or, out of humanity, of suffering real offenders wholly to escape punishment; or else, it must be holden, (what no man will seriously avow,) that the situation and circumstances of the offender, though they alter not the essence of the offence, ought to make no distinction in the punishment. There are...various gradations of guilt in the commission of the same crime, which are not susceptible of any previous enumeration and definition.

Story, like Hamilton, identifies an inherent limitation to the rule of law. It is necessarily a set of general maxims - but life admits of subtleties and "gradations" that the law itself cannot capture. Thus, his fear is that judges and juries will either be too harsh or too lenient. The power of the pardon is therefore necessary. Indeed, it allows the rule of law to be of maximum benefit to society.

Note the exception that the Framers inserted into the provision: "except in cases of impeachment." (The ever-so-subtle Hamilton wants you to note this - which is why he saw fit to emphasize it with capital letters) This is a sign that they were conscious of questions about the breadth of the power's scope. They intentionally chose to limit it to this extent, but no further. Indeed, in The Federalist #74, Hamilton considers, and rejects, the argument that the President should not have the power to pardon in cases of treason. In drafting the Constitution, the Framers considered, and rejected, a provision to have pardons for treasons reviewed by the Senate. [Interestingly, George Washington, on his way out of office, actually pardoned the perpetrators of the Whiskey Rebellion.] Clearly, this was not a haphazard and careless grant of executive power. They chose one - but only one - exception to it.

Without commenting on whether the Libby commutation should or should not have happened (Prior to the commutation, I had only argued that it would be bad politics, an opinion I still hold) - I will say that more than a few commentators have been a little careless with their rhetoric. A lot of people seem to me to be offering objections that, if taken to their logical conclusions, are actually objections to the power of the pardon itself.

For instance, the Seattle Post-Intelligencer opined:

President Bush's commutation of a pal's prison sentence counts as a most shocking act of disrespect for the U.S. justice system. It's the latest sign of the huge repairs to American concepts of the rule of law that await the next president.

Well - technically, all pardons could be counted as "disrespect for the U.S. justice system" and (obviously) "the rule of law." A pardon is an exception; the justice system does not allow for exceptions. The Framers thought exceptions were appropriate, and so they included the pardon provision.

Similarly, the Chicago Tribune made the following argument:

[I]n nixing the prison term, Bush sent a terrible message to citizens and to government officials who are expected to serve the public with integrity. The way for a president to discourage the breaking of federal laws is by letting fairly rendered consequences play out, however uncomfortably for everyone involved. The message to a Scooter Libby ought to be the same as it is for other convicts: You do the crime, you do the time.

This objection is an objection to the power itself. By this logic, the President should only pardon when there has been a miscarriage of justice. Note that the Framers did not carve out an exception to the power that limits its use to instances where justice has been misapplied. No - it is a wide-ranging power that allows the President to make any exception (other than impeachment) he likes, not just exceptions that involve the miscarriage of justice. The Framers thought it wise to soften the hard edges of the judicial system by giving a single human being the power to free another in almost any circumstance.

Personally, I think that Hamilton's logic is sound and his intuitions are accurate. Critics of this commutation should, I think, be more careful to distinguish between the constitutional power and this particular use of it.

Without commenting upon the validity of its critique, I think that the New York Times hits what may be called the "Hamiltonian note:"

[The demands of Bush's conservative base] put immense pressure on the president to do something before Mr. Libby went to jail. But none of it was justification for the baldly political act of commuting his sentence...

Presidents have the power to grant clemency and pardons. But in this case, Mr. Bush did not sound like a leader making tough decisions about justice. He sounded like a man worried about what a former loyalist might say when actually staring into a prison cell.

This critique is one that differentiates between the power and the act. It is surprising to me that so many other commentators have not been able to make the distinction. After all, part of Hamilton's rationale for putting the power in the hands of the President is that objectionable pardons can be directly linked to a single man. The pardoner is an easy target in our system. So, why can't the rest of the critics do as the Times has done: go after Bush, and leave the power itself alone?