On Granting an Iranscam Pardon

By John Leo

Thousands of criminal offenders routinely petition the President of the U.S. for a pardon. Provided they have served their jail terms, stayed clean for five to seven years, and filled in a four-page form explaining their case, a pardon may be forthcoming -- but the process is likely to take at least three years. Chances are, though, that if Oliver North and his co-defendants in the Iranscam scandal receive pardons, the deal will not happen quite that way. President Reagan will probably grant their petitions with the stroke of a pen, without a three-year wait and perhaps even without a trial.

For many Americans, that is just the problem. The President possesses the constitutional power to pardon whom he will whenever he wishes, and he can exercise that right on either whim or instinct. But should he issue pardons in the Iranscam case at all? And what are the ethics involved?

Larry Simon, professor of constitutional law at the University of Southern California, opposes any Iran-contra pardons, but he sees no moral issue involved. Since pardons by definition go to the guilty, he says, there is no way to argue the ethics of who deserves one and who does not. But Michael Josephson, a former Loyola law professor who now heads his own ethics institute in Los Angeles, notes an important distinction. A pardon, he believes, should never be issued by a person involved in the case, as Reagan is in the Iran-contra scandal. No President ever seems to have done so. "Even when Ford pardoned Nixon, there was no question of Ford's being involved in Watergate," says Josephson. "Reagan, on the other hand, could pardon everyone, theoretically including himself. I can't possibly see how that could be proper."

No one doubts the President's pardoning power is absolute. It is, in fact, a holdover from the days of absolute monarchy. "Historically," says Robert Burns, professor at the De Paul College of Law, "it is the power of the Crown, passed down to the President." Once a Chief Executive decides to invoke it, he need not explain himself and no legal or political challenge is possible. The courts have never articulated any binding standards because there are none in the Constitution, except that the President may not pardon in an impeachment case.

Only rarely, when the pardoned is famous enough, have ethical issues been raised. But complaints go back at least to George Washington's pardon of two leaders of the Whisky Rebellion, and have surfaced during campaigns to pardon Eugene Debs, Tokyo Rose, Jefferson Davis and Samuel Mudd, the physician jailed for setting the broken leg of Lincoln's assassin, John Wilkes Booth.

Most lawyers object to pardons before a trial. "To pardon is to forgive," says New York University Law Professor Stephen Gillers. "It's odd to forgive before guilt is established." It has rarely happened. For most of the nation's history, pardons were basically exemptions from some or all punishment after conviction. Even more significantly, any pretrial pardon for Oliver North and his companions would have great practical consequences. It would head off the possibility that both Reagan and George Bush might be called to testify. Some think such a pardon would be an improper short- circuiting of the legal process.

Judge Gerhard Gesell's announced determination to move the indictments along quickly could make a pardon more likely, since a trial could be under way by Election Day, with a verdict in hand before Reagan leaves office on Jan. 20. One scenario is that Reagan would defiantly pardon the Iranscam defendants in the final hours of his presidency; another is that he would grant a pardon right after the election. Waiting until just after the voting would be ethically very dubious, says Washington Lawyer James Hamilton, a former Senate Watergate committee counsel. He believes it would be "highly inappropriate, depriving the voting public of information it has a right to know."

The most common argument against pardoning the Iranscam defendants is that their actions are too serious to forgive without repentance. "A pardon would say that the democratic process is only a valid one sometimes, and that highly committed patriots can set it aside -- like Dr. Strangelove," notes Ethicist Josephson. He adds, "It would send a message that there are times when we will permit high-level Government officials to lie to Congress. How could we trust anything afterward?"

The ethical weight thus seems overwhelmingly in opposition to any pardons. But if the President decides to follow his own moral compass, it will probably be out of a sense of loyalty to those involved and a determination, as Justice Oliver Wendell Holmes once wrote of an earlier pardon, "that the public welfare will be better served."

Strangely enough, the President could dust off and reissue a press release written to explain pardons given in 1981 to two men "who acted on high principle to bring an end to the terrorism that was threatening our nation." The two were high-ranking FBI officials convicted of authorizing illegal break-ins during 1972-73 investigations of the Weather Underground. The response by the prosecutor in that case, John Nields Jr., who served as chief House counsel in the Iran-contra hearings last summer, is just as apt today. Nields argued that pardons in such cases "send out a terrible signal -- that the Government can violate the Constitution and then forgive itself."

With reporting by David Beckwith/Washington and Elizabeth L. Bland/Los Angeles