Why you should care
The pardon power is one of a U.S. president’s most absolute constitutional powers — and it’s a shame to let it go to waste.
Part of a series on President Barack Obama’s last 100 days in the White House — and the legacy he’ll leave behind.
President Obama gets a lot of flack from his political opponents for using executive orders and other means to pursue the unilateral ends of his so-called “Imperial Presidency.” But when it comes to one of the most absolute powers available to a president, Obama has been remarkably restrained in exercising his constitutional prerogative to “grant reprieves and pardons for offences against the United States.” Thus far, he has been the least generous two-term president in terms of granting pardons since George Washington, but he has promised to pick up the pace. How many last-minute pardons might a lame-duck Obama issue in his final days, and what are the chances he lets a big fish like Edward Snowden off the hook?
Presidential clemency generally comes in two forms: commutation, the shortening of prison sentences without overturning a conviction, and the pardon, which is full legal forgiveness for an offense. For a long time, says Jeffrey Crouch, an American University professor and author of The Presidential Pardon Power, “President Obama’s clemency record wasn’t much different from George W. Bush’s — some pardons for older, nonviolent offenses, along with a handful of sentence commutations.”
But Obama has picked up the pace on commutations, which make up the overwhelming majority of his clemency grants, commuting the sentences of more than 210 drug offenders earlier this year (his current tally is over 600). But his 70 pardons still remain well behind other recent two-term presidents like Ronald Reagan (393), Bill Clinton (396) and George W. Bush (189). The administration has been tight-lipped about planned pardons, but Obama admitted in an August press conference that he has focused more on commutations than pardons and promised that “by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”
If it seems as though Obama has been stingy, it could be because clemency can be “politically risky,” as the president himself has noted. Not only is there a risk that a pardoned felon will commit another crime, but the fallout from such a high-profile move, like Clinton’s pardon of political donor and financier Marc Rich, convicted of tax evasion, can be messy. There are also some bureaucratic and financial constraints — the Justice Department has been flooded by clemency petitions since it announced its Clemency Initiative for nonviolent offenders in 2014.
One way that Obama could make up for his shortfall, not to mention patch up his legacy, according to many advocates, is by pardoning some well-known whistle-blowers like Snowden and Chelsea Manning. Groups such as Amnesty International and Human Rights Watch have asked Obama to pardon Snowden for exposing the U.S. government’s own spying programs, arguing that history will look favorably on Snowden’s deeds and that a pardon would also send a powerful message to future whistle-blowers. The same goes for Manning, who received a 35-year prison sentence for leaking classified documents to WikiLeaks.
Ed Snowden fought for our freedom. Now we’re fighting for his. President Obama: Let’s do this. https://t.co/W69qQDAlXr— Pardon Snowden (@PardonSnowden) September 14, 2016
Obama has also faced pressure from advocacy groups to pardon other high-profile inmates. The Dalai Lama, Nelson Mandela and Coretta Scott King, among others, have pushed for the release of Leonard Peltier, a Native American activist convicted of killing two FBI agents on a reservation in 1975 in what Amnesty International has called an unfair trial. The scholar and activist Angela Davis is among those pushing for the pardon of Assata Shakur, a female former Black Panther who fled to Cuba after being convicted of killing a New Jersey state trooper in 1973 in another problematic trial.
Obama could also focus his clemency fire on certain groups of people. One in particular that presents a strong case includes those individuals sentenced under the old crack laws that have led to major racial disparities in sentencing, says Rachel Barkow, a law professor at New York University. For thousands, “clemency is their only hope of justice,” she adds. And of the more interesting pardon cases, one is being made for George W. Bush. A preemptive presidential pardon for him and others officials in his administration implicated in American torture could, as ACLU Executive Director Anthony Romero has argued in The New York Times, “make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals.”
Of course, it’s highly unlikely that Obama would attempt such an act on his predecessor, whom First Lady Michelle Obama hugged so affectionately recently, but could the president make some other big-name pardons? “I’d be stunned if President Obama pardoned Edward Snowden or any other high-profile figure,” says Crouch. “He’s consistently resisted media and activist pressure to offer clemency to famous offenders, including Snowden and Peltier, among others.”
In the end, Crouch says that Obama will likely continue to prioritize nonviolent drug offenders for clemency and both he and Barkow expect many more such commutations before his presidency winds down. Given such commutations, “he’s clearly not afraid to use his clemency power,” says Crouch. It’s just that the pardon-denying Obama “simply has a different view on who should receive presidential mercy.”