My political awareness goes back to a misty dawn in the age of Watergate. In the past three decades, I can think of no power that's been abused as consistently as the presidential power to pardon those who have abused the public trust in service of the executive. With one foot out the door, get-outa-jail-free cards are handed out to a rogue's gallery of loyal micreants and tight-lipped footsoldiers. The promise of a pardon (whether a leap of faith or a quid pro quo) bolsters the morale of the euphemistically described stonewallers and spinners who would choose to endure a year or two at Club Fed out of a loyalty to a personality.
The US constitution reads as follows:
Article2 Section 2. Clause 1:
The President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
This seems to indicate that the Framers (with their habit of economical prose) wanted to put a limit on presidential pardoning powers, and that the limits began at impeachable offenses.
I believe that use of pardon powers in furtherance of cover-up is exactly what the constitutional limit was contemplating. However, the "strict construction" of the limits on this clause only broadens executive power, and will lead to more brazen cover-ups and secret government. But what is the real-world distinction between an act of an official and the act of his staff which, having been performed with or without the official's encouragement, is deemed to be an impeachable offense? If the offense is impeachable, shouldn't that be an exception to the presidential pardon power?
For too long, the American people have been sold the idea that "healing the nation's wounds" takes precedence over the exposure of the truth. Everyone I knew, growing up in the blue-collar urban rust belt, saw Nixon's pardon as an escape from accountability that put the president above the law. The more cynical folk suggested that "They all do it. Nixon just got caught" -- implying that the biggest sin of all is failure to cover your tracks. The outrage over Clinton's pardons in 2001 (though politically fanned and exploited to a considerable extent) expresses the common understanding that the power has been increasingly abused. In the current Libby case, it is generally assumed that Libby will take the fall and be pardoned at 11:59am on January 20th, 2009.
I think that all those interested in clean government should support a constitutional amendment to make explicit the common sense that must have been implicit in the above clause (expressed with appropriate Madisonian grandeur):
Amendment XXVIII:
The President shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment and for Offences committed in the Employ or Service of a President during his Administration unless two Presidential Elections shall have taken place in the Intervening Time.
This would guarantee at least five years between the commission of a crime and a pardon. It would be on a new president's docket, and the political fallout (or benefits) would be accounted for by an officeholder who still had some degree of political responsibility to the public.
We must ensure that all executive officials are aware that there can be no real or implied quid pro quo that would allow them to break the law and be released from the appropriate legal consequences.