by JONATHAN T. MENITOVE

Shortly after 9:30 a.m. on January 15, 2009, Senator Patrick Leahy gaveled the Senate Judiciary Committee to order. Seated before the Committee was Eric Holder, then President-elect Barack Obama’s nominee to become the eighty-second Attorney General of the United States. As Senator Leahy used his opening statement to sing the nominee’s praises, the senator seated to Leahy’s right—ranking member Senator Arlen Specter—had only one name on his mind: Marc Rich. Senator Specter’s initial round of questioning focused entirely on Holder’s role in the controversial, last-minute pardon President Clinton granted to the wealthy financier and Democratic fundraiser during his final hours in office. Undoubtedly, Specter was not the only one with questions, as many Americans questioned whether Holder truly represented the change for which the nation had voted. The reemergence of the Marc Rich story during the Holder confirmation hearings once again cast the limelight on the current presidential pardoning structure’s vulnerability to abuse. This article seeks to explore the pardoning process and—consistent with the Obama Administration’s focus on making government more transparent—to propose a solution by which the unchecked power of the President to pardon might be reformed.

Article II, Section 2, Clause 1 of the Constitution grants the President of the United States the “Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The Framers’ vesting of this broad authority, coupled with Supreme Court decisions affirming the near-limitless nature of this power, has imbued the Office of the President with tremendous discretion to grant federal offenders pardons, conditional pardons, commutations of sentence, remissions of fines, reprieves, and amnesties. While clemency power is by no means unique to the American system of government, the seemingly unchecked nature of this power establishes executive clemency as somewhat of a constitutional anomaly outside the system of checks and balances. Eric Holder’s confirmation hearings revived the public’s memory of President Clinton’s notorious Marc Rich pardon. Other recent controversial pardons include President George H.W. Bush’s pardon of six White House officials involved in the Iran-Contra scandal8 and the commutation of I. Lewis “Scooter” Libby’s sentence by President George W. Bush. Additional criticism of executive clemency has highlighted the declining use of the presidential pardon, despite the Framers’ intent for clemency to serve a vital role in the criminal justice system.

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