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Before Watergate, presidents were generally reluctant to pardon executive branch officials after their administrations had been investigated by an outside prosecutor. Since Watergate, however, presidents are less reluctant to use clemency for their own personal interest, as demonstrated by controversial clemency decisions involving executive branch officials or cronies made by our most recent three presidents. This practice is contrary to President George Washington's use of the clemency power and later legal precedents, both of which follow the framers' intent that the pardon power be used as an "act of mercy" or for "the public welfare." When and how presidents began misusing the pardon power, and the resulting consequences, are discussed here.
The purpose of this article is to explore why the presidential pardon power has been invoked by our last three presidents not merely for the traditional reasons of showing mercy or ensuring justice, but also in circumstances where the president may have enjoyed a personal benefit from exercising executive clemency. Presidents George H.W. Bush, Bill Clinton, and George W Bush each used clemency in inappropriate ways: either to help their own executive branch officials and possibly themselves to avoid judicial prosecution (Bush 1 and 2), or to excuse financial contributors and aides that, as the president himself, had been subjects of aggressive independent counsel investigations (Clinton).
These controversial clemency actions of the last three presidents are an unfortunate legacy of the independent counsel statute, which lapsed in 1999- As will be shown, nearly every pre-Watergate president who had endured a special counsel investigation avoided using the clemency power to excuse executive branch officials from their crimes, especially in circumstances where the president's own involvement was unclear. The restraint showed by these past presidents is consistent with the framers' intentions that the clemency power be used either as a kingly "act of grace," or for "the public welfare"-not to excuse the president's men.
The three recent presidents mentioned above may represent a disturbing new trend where a modern chief executive feels free to excuse his close associates in circumstances where his administration may be involved in wrongdoing, or to reward political donors. Using the clemency power to protect one's aides or help one's benefactors marks a misuse of the presidential pardon power.
Brief History