There was an interesting recent interview of President Barack Obama by the German media giant Der Spiegel. In the interview, President Obama insisted that he could not pardon Edward Snowden as a matter of constitutional law. He is manifestly wrong. While the President may not want to pardon someone who deeply embarrassed him and his Administration, he is entirely capable of pardoning Snowden who is widely viewed as a whistleblower.
Here is the exchange in pertinent part:
ARD/SPIEGEL: Are you going to pardon Edward Snowden?
OBAMA: I can’t pardon somebody who hasn’t gone before a court and presented themselves, so that’s not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.
At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I’ve tried to suggest — both to the American people, but also to the world — is that we do have to balance this issue of privacy and security. Those who pretend that there’s no balance that has to be struck and think we can take a 100-percent absolutist approach to protecting privacy don’t recognize that governments are going to be under an enormous burden to prevent the kinds of terrorist acts that not only harm individuals, but also can distort our society and our politics in very dangerous ways.
And those who think that security is the only thing and don’t care about privacy also have it wrong.
This is simply incorrect — as is known to anyone who remembers the fact that Gerald Ford pardoned Richard Nixon before he had been indicted.
And it appears that the President knows this. Because, as the Pardon Snowden campaign points out, Obama pardoned three Iranian Americans who had not yet stood trial. That happened this year. So for him to say it’s impossible to pardon someone who hasn’t gone before the court is simply, factually, historically wrong.
If this were true, President Gerald Ford could never have pardoned Richard Nixon who was not charged with any crime. Nixon did not go “before a court and presented” himself. The case law is quite clear on this point. In 150 Ex Parte Garland (1865), the Supreme Court considered a law that requiring a loyalty oath be recited by any Federal court officer affirming that the officer had never served in the Confederate government. It effectively barred former confederates from such positions, including Augustus Hill Garland (right), an attorney and former Confederate Senator from Arkansas. Garland had received a pardon from President Andrew Johnson and the Court ruled 5-4 that the law was a bill of attainder and an ex post facto law. The Court ruled:
The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control.
Moreover, President Obama is no doubt fully aware that Snowden has no defense to make in court since the Espionage Act does not contain a whistleblower defense.
Clearly, the President can have objections on the merits to a pardon. There are certainly many people in Washington who despise Snowden for exposing the massive surveillance system. The Obama Administration was rocked by the disclosures and there are likely few advocates within the Administration for helping Snowden in any fashion. The decision not to pardon Snowden however will be dictated by the President and not the Constitution.
Thus, if there is a constitutional version of the Pinocchio fact checker test, this would receive five Nixons for misreading the Constitution and its history in the statement “I can’t pardon somebody who hasn’t gone before a court and presented themselves.”