The attorney for Brian McNamee, Richard Emery, started a firestorm over his suggestion that Roger Clemens could receive a pardon from President Bush if accused of lying about his alleged use of performance-enhancing drugs. It is possible for the president to grant such a pardon in anticipation of a criminal charge, though it would be an facial abuse of authority.
A president can grant a prospective or anticipatory pardon — as was done with Richard Nixon. It is, however, highly irregular and improper under modern pardon policies. The legal process often reveals incriminating details in a criminal case. In the Clemens matter, the most that Bush know of Clemens is that he is the seven-time Cy Young Award winner and a sport icon — and a friend.
Article II, Section 2, states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This great power includes the lesser included powers such as conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, and other forms of relief.
To grant Clemens a pardon would guarantee that Bush would add to his questionable legacy the abuse of pardon authority. It is precisely the legacy earned by Bill Clinton in his shocking abuse of the authority in his final days. This includes the pardoning of a family member, Roger Clinton — an act of corruption in the use of official office to benefit a family member. He also pardoned billionaire fugitive Marc Rich and other controversial figures who lacked any meritorious claims for such extraordinary relief. Bush, of course, may already be prepared for criticism in the pardon of those individuals who carried out unlawful acts of torture or electronic surveillance.
Presidents have largely yielded to good public policy in allowing the criminal justice system to determine the merits of criminal charges — and to allow appellate courts to review such determinations. It is rare for a pardon to be considered before the completion of the direct appeal. The only exception tend to be people like the Iran-Contra defendants and Scooter Libby who are accused of crimes related to their official duties. Yet, even Libby was required to go through a criminal trial and sentencing — as well as initial appeals.
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