Ethics: On Granting an Iranscam Pardon

Thousands of criminal offenders routinely petition the President of the U.S. for a pardon. Provided they have served their jail terms, stayed clean for five to seven years, and filled in a four-page form explaining their case, a pardon may be forthcoming -- but the process is likely to take at least three years. Chances are, though, that if Oliver North and his co-defendants in the Iranscam scandal receive pardons, the deal will not happen quite that way. President Reagan will probably grant their petitions with the stroke of a pen, without a three-year wait and perhaps even without a trial.

For many Americans, that is just the problem. The President possesses the constitutional power to pardon whom he will whenever he wishes, and he can exercise that right on either whim or instinct. But should he issue pardons in the Iranscam case at all? And what are the ethics involved?

Larry Simon, professor of constitutional law at the University of Southern California, opposes any Iran-contra pardons, but he sees no moral issue involved. Since pardons by definition go to the guilty, he says, there is no way to argue the ethics of who deserves one and who does not. But Michael Josephson, a former Loyola law professor who now heads his own ethics institute in Los Angeles, notes an important distinction. A pardon, he believes, should never be issued by a person involved in the case, as Reagan is in the Iran-contra scandal. No President ever seems to have done so. "Even when Ford pardoned Nixon, there was no question of Ford's being involved in Watergate," says Josephson. "Reagan, on the other hand, could pardon everyone, theoretically including himself. I can't possibly see how that could be proper."

No one doubts the President's pardoning power is absolute. It is, in fact, a holdover from the days of absolute monarchy. "Historically," says Robert Burns, professor at the De Paul College of Law, "it is the power of the Crown, passed down to the President." Once a Chief Executive decides to invoke it, he need not explain himself and no legal or political challenge is possible. The courts have never articulated any binding standards because there are none in the Constitution, except that the President may not pardon in an impeachment case.

Only rarely, when the pardoned is famous enough, have ethical issues been raised. But complaints go back at least to George Washington's pardon of two leaders of the Whisky Rebellion, and have surfaced during campaigns to pardon Eugene Debs, Tokyo Rose, Jefferson Davis and Samuel Mudd, the physician jailed for setting the broken leg of Lincoln's assassin, John Wilkes Booth.

Most lawyers object to pardons before a trial. "To pardon is to forgive," says New York University Law Professor Stephen Gillers. "It's odd to forgive before guilt is established." It has rarely happened. For most of the nation's history, pardons were basically exemptions from some or all punishment after conviction. Even more significantly, any pretrial pardon for Oliver North and his companions would have great practical consequences. It would head off the possibility that both Reagan and George Bush might be called to testify. Some think such a pardon would be an improper short- circuiting of the legal process.