Legal Forum
A Last-Minute Pardon from Clinton,
A Last Value Meal® from Bush

Among the invitations in the mailbox recently was a full-color brochure whose cover bore the soft-focus image of a benevolent hand. But for its size and print quality, one could have confused it with a Jehovah's Witness tract. Inside, a finger-to-the-wind colleague had conceived a pricey, two-day professional CLE[1] seminar entitled "Forgiveness in the Law." Its incongruity evoked an audible 'What the--?': Apart from principles of equity ("Equity does equity."), conventional American legal training has no truck with mercy.[2]

While penance (thus, "penitentiary") figures subtextually into the classic, Anglo-derived set of rationales for punishment which every first-year law student memorizes (retribution, rehabilitation, deterrence), the implied promise of societal forgiveness is hedged. At most, the 'demonstration of genuine remorse' may move a judge left on the 1-to-10 continuum in cases where s/he still possesses discretion on sentencing. However, compulsory registration of sex offenders (e.g., "Megan's Law") and job application disclosure requirements on pain of 'immediate termination' suggest instead routine, even systematic, continuing stigmatization.

Factors in the debate on the reinstitution of the ultimate punishment have recently also included "economy" (no 13th place setting at meal times) and "protection" (subsumed into a vast 'quality of life' category which includes racial profiling, redlining, and homeless sweeps).[3] Precursor lists have acknowledged another, historically the concomitant of public executions: the overt expression of moral outrage. Even as social re-education has consigned the term, 'lynching', to metaphoric usage (slow-learners still failing to grasp the simplified, if broadened, 'hate crimes'), social inculcation has fostered a semi-national pastime of moralistic acting out.

Whose Righteous Is It Anyway?

Insatiable holier-than-thou, man-in-theeet (i.e. commoner) demands for increasingly self-abasing apologies from Clinton (the republic's ersatz monarch) were unappeased even after the hideous bathos of the country's impeachment ordeal, by whose tortured tautologies and see-through sophistry masturbation became the epitome of 'high crimes and misdemeanors' and 'rule of law' the idée affichée in the impressionable, Limbaugh-lobotomized minds of the uneducated and of the brainy, if duplicitous, doctrinaire. Already overchallenged, the other overprovoked, such intellects collapse in massive frustration when the one so willingly vilified reaches -- by uniquely granted Constitutional prerogative[4] --'above the law' to pardon the wrongdoing of others.[5]

Advocates of capital punishment readily accommodate the paradoxical premise which allows the adamant pro-lifer to rationalize his bombing of family-planning clinics and his death threats to female care physicians.[6] Much worse though, while dimanchier hangmen anguish once actually impaneled as fact-finders on a weekday jury, Realpolitiker George W. Bush dismisses hard-science exculpatory evidence (DNA) without compunction when his gut tells him the presumptive perp did it or will do -- to serve out his term, since already begun, as the designated object for the venting of public outrage.[7]

Even as Clinton served out his term skewered on the bull market horn of public outrage, the People--in a dilemma of their own making--waggled with the broken other: public adulation. Certainly they require a president to be at once monarch and commoner, but moreover stroke unknowingly upon him as Dorian Gray portrait now flattering, now monstrous shades of their own virtue and vice, self-love and self-loathing--with as little command of brushwork as of history, typically a flashcard-like sense that reads: Mayflower - George Washington - Gettysburg - Hitler - Steven Spielberg.

Fatally Flawed King in a Shakespearean Comedy

Hopeful Democrat or resigned Republican, they assumed they had inaugurated from among multiple contenders a Prince Hal (whose adopted father was Kennedy royalty). His enemies soon laid rebellion in his way and he found it.[8] Historians will argue whether this Hal--but for his overpublicized moral lapses--could have fulfilled his promise and become Henry V. Surely, none were prepared for a fifth act in which Clinton would conduct himself as Vincentio, Duke of Vienna.[9] Bush's costumers may have passed him off as a high-minded Angelo, but he could just as well turn out to be Lucio.[10]

To premise impeachment on the notion that the U.S. Constitution stands or falls on the duty of a president (our youngest save one) to act as national shepherd for a self-selected, evangelistic flock and moral retriever of the wayward is patently ludicrous. John Donne disposed already in Pseudo-Martyr (1610) of the dilemma faced by a devout minority (English Roman Catholics) unable to reconcile religious and secular strictures, thus, obedience to Pope Paul V with the oath of allegiance to King James I. Donne (himself, a lapsed Catholic) did not propose a resolution that merged these sovereign estates, sacred and profane, into one glory-bound leader. Instead, he argued (a lawyer) that the exercise of royal mercy and pardon is the province of the absolute ruler, both secular and religious, which, used by pope and king, each toward one another, could resolve the quandary for the Catholic minority.[11] The Framers resolved it with the First Amendment prohibition against state intrusion in church matters, thereby effectively separating the two realms and ceding to each the powers of its respective sovereignty: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." (1791)

Nevertheless asked to perform as both latter-day king and pope, resolution eludes an American president. As undisputed sovereign of the realm, he must still be one with the common man, and endure seditious utterances against his person for which the speaker would once have swung.[12] He cannot even arbiter the standards of language in a time when the King's English is done unprecedented violence by his precursor and successor in office, original and proxy in a would-be dynasty of Bushspeak.[13] Truly, the American emperor has no clothes. Not much news there. But what a revelation: The emperor has a penis. Wait. Look. Did we see something more? A sovereign right of pardon--and the balls to use it.

Literary Mercy or Poetic Justice

It is indeed one of the great advantages of monarchy
in general, above any other form of government; that
there is a magistrate, who has it in his power to
extend mercy, wherever he thinks it is deserved:
holding a court of equity in his own breast, to soften the
rigour of the general law, in such criminal cases as
merit an exemption from punishment.

Blackstone's Commentaries on the Laws of England
(emphasis supplied).

If I am wrong, ten angels swearing I was right would
make no difference. I do believe, with all my heart
and mind and spirit, that I, not as President but as a
humble servant of God, will receive justice without
mercy if I fail to show mercy.

(Ford pardons Nixon, September 8, 1974.)

Those who seek forgiveness must themselves be
ready to forgive.

(Bill Clinton, September, 1999)

No ceremony that to great ones 'longs,
Not the king's crown, nor the deputed sword,
The marshal's truncheon, nor the judge's robe,
Become them with one half so good a grace
as mercy does.

(Isabella's appeal to Angelo on behalf of her brother
Claudio: Measure for Measure, II.ii.58-63.)

Hal's father, Henry IV, granted a general pardon to Thomas Littleton in October, 1455. Sir Thomas Wyatt (1503-42), credited along with the Earl of Surrey with introducing the sonnet to English, was allegedly the lover of Anne Boleyn both before and after her marriage to Henry VIII. Wyatt was sent to the Tower for quarreling with the Duke of Suffolk, and while there, witnessed Boleyn's execution (1536). (The deer with a jeweled collar in his "Whoso List to Hunt" is believed to refer to her.) He was imprisoned again for making rude remarks about the king's person to a cardinal. Through the efforts of Queen Catharine Howard, he received a royal pardon of his treason, but took ill and died the same year.

John Merbecke, who edited and set to music The Booke of Common Praier Noted, was to have been burned at the stake in 1544, but a friend intervened to obtain a royal pardon. Christopher Marlowe, author of Doctor Faustus, was killed in a tavern brawl, allegedly by his assistant, Ingram Frizer. Frizer obtained a royal pardon, claiming that he had acted in self-defense. Legend has it that Robin Hood (1160-1247), condemned to death for violation of forest laws, remained loyal to the crown though a fugitive from its justice. Richard the Lionhearted may have sought him out in disguise, and impressed by his loyalty, granted him a pardon. French poet François Villon, who reportedly killed a priest with a sword at the Cloisters of St. Benoît in 1455, was banished from Paris, but later pardoned.

In Brecht's Three Penny Opera, the thief Macheath is arrested for marrying the daughter of a bourgeois, but escapes with the help of the Police Commissioner's daughter. Later, he is caught again when a third woman betrays him. Just before he swings, he is saved by a royal pardon. Tosca purchases her lover's pardon with a pledge of womanly favors, if not virtue. Unbeknownst to her, the reprieve is a sham, but she is moved to kill the treacherous Scarfia for his affrontery alone. Mario is executed and she leaps to her death. Sir Thomas Malory, author of Le Morte d'Arthur, was granted a pardon that was later revoked. Oscar Wilde was denied a pardon, though he would likely qualify for one now, as would Paul Verlaine. The laws of man are not immutable.

Cruel and Unusual Punishment: A Theory of Relativity

The prospects of such a trial will cause prolonged and
divisive debate over the propriety of exposing to
further punishment and degradation a man who has
already paid the unprecedented penalty of relinquishing the
highest elective office of the United States.

(Ford pardons Nixon, September 8, 1974.)

There are fifty-five persons awaiting execution by firing squad in Thailand, the official punishment since 1935 (when it replaced decapitation). Fewer than three hundred persons, nearly half of them convicted murderers, have incurred that punishment. Four were shot for offenses against the royal family. There is no indication that any of them had held or willingly relinquished that country's highest elective office.

A primary reason cited by Ford for his pardon of Nixon was that it might take years for the former president to secure a fair trial anywhere in the U.S., that his due process rights could therefore be abridged, just as he was trying to "reshape his life." In an Op-Ed piece for The New York Times, Scott Turow, a criminal defense lawyer and author of the best-selling novels, One-L, Presumed Innocent, and Burden of Proof, catalogued the violations of Clinton's due process rights, and concluded that he had by reason of his status been accorded far less than equal justice under the 'rule of law.' Neither president was ever put at risk of life and limb. Marc Rich was indicted for tax fraud and for flouting an embargo then in effect against trading with Iran and South Africa. Reagan's Secretary of Defense, Caspar Weinberger, was pardoned by George Bush the Elder for his involvement in the government's secret arms trading with Iran.

Capital punishment became routine in Texas during the eight years of Bush's tenure as governor. The most common last meal request was a cheeseburger. No doubt, the menu selections were not extensive. Studies are now documenting that prison personnel assigned to lethal duty exhibit signs of long-term trauma. If testimony from such persons becomes admissible at hearings on sentencing, perhaps judges will take pity on them; perhaps law-makers who share Bush's 'faith-based' values will as well.

Why all the souls that were, were forfeit once;
And He, that might the vantage best have took,
Found out the remedy. How would you be,
If He which is the top of judgment, should
But judge you as you are? O, think on that;
And mercy then will breathe within your lips,
Like man new made.

(Measure for Measure, II.ii.72-79, Isabella to Angelo.)

It Takes a Saint

Bush is a Prince Hal, boisterous in his youth but familiar with integrity, now a regent devoted to the redemption of his father's "vision thing". In their book, Shrub, The Short but Happy Political Life of George W. Bush (Vintage, 2000) Molly Ivins and Lou Dubose recount that during his father's 1988 presidential campaign, George 'Dubya' ("He's got no 'Herbert'.") was assigned to liaise with the Christian Right and did it well. This arm of the party is powerful in Texas and took over the legislature in 1994, just as Newt Gingrich was 'contracting' with America (and with 'harlits'). Once a libertine, Bush has been rehearsing publican piety for twelve years.

Angelo's chief faults are self-deception and arrogant self-righteousness. Ascetic, he is completely vulnerable to what he has denied himself. "O cunning enemy, that, to catch a saint, / With saints dost bait thy hook!" (II.iv.178-9) When he surrenders to temptation, his blood, once "very snow-broth" flows hot: "Let's write good angel on the Devil's horn." (II.iv.16) Good and evil change places in his mind, leaving him with no moral reference at all. He becomes a scoundrel.

Yet a sinner reformed from without to saint will not "confess a natural guiltiness" for fear of reversion.

Alack, when once our grace we have forgot,
Nothing goes right: we would, and we would not.


Hell, a bishop ratted on Wyatt--to curry favor with a king, the same king who pardoned Wyatt for the blasphemy against his secular lord.

-- MH (J.D., LL.M.)

[1] CLE: "Continuing Legal Education".

[2] "Mercy-killings" by amico- or medico-intervention are admittedly the stuff of law review articles and third-year electives.

[3] NY State Bar Assoc'n Newsletter, Summer 2000.

[4] . . . he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. (Art. II, Sec. 2, U.S. Constitution). "The power flows from the Constitution cannot be modified, abridged, or diminished by the Congress." Craig v. Boren. Because presidents have rationalized their clemency decisions based on everything from due process considerations, to 'encouraging reformation', to the Christmas spirit, the Annual Report of the Department of Justice stopped reporting decisional rationales in 1933. Beneficiaries have included suffragettes and draft-dodgers, mobsters and Watergaters, thus, G. Gordon Liddy and Richard ("I am not a crook!") Nixon, and even baseball bully, George Steinbrenner.

[5] An animal bewildered attacks. A political animal gaffes: "It's hard to pardon somebody who hasn't been indicted for anything. No, I wouldn't pardon somebody [i.e. Clinton] who has not been indicted. It doesn't make any sense." -- George W. Bush, Jan. 9, 2001. The absence of an indictment was no such obstacle to the pardon of Nixon by his successor, Gerald Ford. Clinton has indicated he is not interested in a pardon from Bush, and does not expect that he will have any use for one.

[6] "What do I tell my children?" was the cry of constituents outraged by Clinton's alleged perjury, a plaintive refrain sung into tunelessless on Capitol Hill. What does the abortion clinic arsonist tell his children?

[7] "Prompted by [Illinois Gov. George] Ryan's startling [moratorium] announcement and the growing number of exonerations of Death Row prisoners—now totaling 93 over the past three decades—seven states will consider moratoriums or measures that would abolish the death penalty in their coming legislative sessions.",2669,ART-49560,FF.html

"Under Gov. George W. Bush, Texas has executed dozens of Death Row inmates whose cases were compromised by unreliable evidence, disbarred or suspended defense attorneys, meager defense efforts during sentencing and dubious psychiatric testimony, a Chicago Tribune investigation has found.
While campaigning for president, Bush has expressed confidence in the fairness and accuracy of the death penalty system in Texas, the nation's busiest executioner. He has said he sees no reason for Texas to follow Illinois' lead by declaring a moratorium on executions.
But an investigation of all 131 executions during Bush's tenure found that the problems plaguing Illinois are equally pronounced in Texas and that additional flaws undermine the state's administration of society's ultimate punishment."
Chicago Tribune, June 11, 2000, cited in

[8] Paraphrase: "Rebellion lay in his way, and he found it." (Henry IV, Pt. 1, V.i.28) Forced to answer deposition questions in the sexual harassment case brought by Paula Jones, Clinton allegedly perjured himself.

[9] The Duke, "like Jesus, the prophet of an enlightened ethic," metes out justice and mercy at the close of intrigue-riddled Measure for Measure.

[10] Bewitched by the purity of the convent-bound Isabella, Angelo demands she trade her virtue for her brother Claudio's life. Lucio, reckless and glib, slanders the Duke as a coward, who condemns him to whipping and hanging, but commutes his sentence to marriage of his mistress.

[11] James was well-pleased and disposed to further Donne's career, but only on condition that he take Anglican orders. Donne resisted until 1615, and was then appointed Royal Chaplain.

[12] Thomas Jefferson pardoned all those convicted under the Sedition Act of 1798 for allegedly defamatory statements against the government.

[13] Asked by a journalist what he and his father talk about when not discussing politics, George the Younger brightened and confided, "You know: pussy!" His inability to reconcile subject and verb, and inimitable syntactical and grammatical blunders provide daily content for numerous web sites.