Constitution Daily

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A pre-emptive Snowden pardon seems against the odds

January 6, 2014 by Scott Bomboy


The New York Times and the Guardian newspapers want President Obama to grant clemency to fugitive former NSA consultant Edward Snowden, who stole and then leaked detailed information about government surveillance.

Edward-Snowden640But is there a case for clemency and is it within the President’s powers under the Constitution?

Clemency might not be the most precise word to describe Snowden’s predicament. At best, he could hope for a plea bargain with federal prosecutors before returning from Russia to the United States to face three federal charges related to his activities.

The President does have clemency power under Article II, Section 2, clause 1, of the Constitution, under what is called the Pardon Clause.

The clause says the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

The Office of the Pardon Attorney, which is part of the Justice Department, has handled such matters for the President since 1893, and it has a detailed description of the pardon and clemency process on its website.

Although the terms clemency and pardon seemed to be interchangeable in the Snowden discussion, in general terms executive federal clemency is granted after someone had allegedly committed a crime.

In most cases, that person is convicted of a crime, and then granted a form of clemency. In the case of President Richard Nixon, he was granted a pardon for any crimes he might have committed during the Watergate scandal, even though Nixon wasn’t charged with or convicted of federal crimes. (This is known as a pre-emptive pardon.)

One way a person can receive clemency after a conviction is through a commutation of a sentence.

“A commutation of sentence reduces a sentence, either totally or partially, that is then being served, but it does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction,” says the Office of the Pardon Attorney.

A person also needs to be convicted and in prison to apply for a commuted sentence.

A pardon allows a convicted person to reclaim lost civil rights after a conviction.

“A pardon is an expression of the President’s forgiveness and ordinarily is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or completion of sentence,” says the Office of the Pardon Attorney.

However, in the case of President Nixon, he was able to receive a pardon under the precedent of an 1866 Supreme Court ruling called Ex parte Garland, which allowed for a pardon granted by President Andrew Johnson to remain in force for a former Confederate politician.

August Garland, an attorney who had served in the Confederate Congress, received a full pardon from President Johnson in July 1865 for offenses he may have committed during the “rebellion.” However, six months earlier, Congress passed a law barring anyone in the former Confederate government from practicing law.

Justice Stephen Johnson Field, writing for a divided Court, said that “a pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence.”

“If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching [thereto]; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights.”

In Snowden’s case, leniency might be a better choice of words, which is what the New York Times’ editorial board asked for last week.

“It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community,” it said.

The Guardian asked for an outright pardon for Snowden.

“Mr Snowden gave classified information to journalists, even though he knew the likely consequences. That was an act of some moral courage. Presidents – from Franklin Roosevelt to Ronald Reagan – have issued pardons,” said the Guardian.

Pre-emptive pardons remain rare. In addition to Ford’s Nixon pardon, President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger and former CIA official Duane Clarridge in late 1992 before they were tried on Iran-contra Affair charges. (Four others were convicted in the case and also pardoned.)

For now, a pardon for Snowden if and before he returns from Russia would be a long shot at best.

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