With only a month left in office, President Clinton is reviewing the pardon applications of several high-profile criminals, including junk-bond king Michael Milken, Israeli spy Jonathan Pollard, Native American murderer Leonard Peltier, and Whitewater witness Susan McDougal. The Constitution allows the president, “except in cases of impeachment,” to pardon citizens who have been convicted of federal crimes or who are in jeopardy of such a conviction. As this “Explainer” notes, one justification for pardons is to recognize atonement for past crimes through good behavior (the argument for Milken). Another reason—as explained by Alexander Hamilton in Federalist No. 74—is to allow the executive branch to “check” the judicial branch when it suspects a criminal proceeding has been unjust (the argument for Peltier) or politically motivated (the argument for McDougal).
Since becoming president, Clinton has granted 185 pardons out of nearly 2,000 requests. This rate, about 23 a year, is slow by historical standards. [Update Dec. 27: Clinton has pardoned nearly a hundred people in the past several weeks. On Dec. 23 he pardoned Archie Schaffer (below). He has now pardoned 280 people, a rate of about 35 a year. Update Jan. 22: On his last day in office Clinton pardoned 176 people, including Susan McDougal (below). As president he pardoned 456 people, a rate of of 57 a year.] The most generous pardoners were Herbert Hoover (346 per year), Woodrow Wilson (310), and Franklin Roosevelt (307). Since World War II, pardons per year have steadily declined—197 for Johnson, 168 for Nixon, 164 for Ford, 142 for Carter, 51 for Reagan, and 19 for Bush.
Here is a list of the most prominent pardon applications now before the president, in order of likelihood of success:
1. Michael Milken
Milken rose to prominence in the 1980s as the king of “junk bonds.” That is not illegal. But in 1990 Milken pleaded guilty to six felony counts in connection with insider trading. He paid a $1 billion fine and served two years of a 10-year sentence. After his release he violated his probation agreement, which forbade him from conducting major business deals. For that he paid a $47 million fine.
Milken’s defenders argue that he committed merely technical violations and was prosecuted simply because he embodied the greed of 1980s Wall Street. Since his release he has become an active philanthropist and a public spokesman for prostate-cancer awareness. New York Mayor Rudolph Giuliani, who as a federal attorney helped direct Milken’s prosecution, supports his pardon. (Giuliani said Milken came to his aid after his own diagnosis of prostate cancer.) Ron Burkle, a California supermarket titan who pledged $135 million to Clinton’s presidential library, has lobbied the White House for a pardon. (Burkle attributes his success to loans arranged by Milken in the 1980s.) In the 1980s, Milken’s now-defunct firm, Drexel Burnham Lambert, was a large Democratic contributor. (Al Gore’s first presidential campaign chair, Tony Coelho, resigned from the House of Representatives in 1989 for concealing the nature of a $100,000 Drexel bond.)
Will Clinton pardon him? Probably. The pardon is palatable to business leaders in both the Democratic and Republican parties. Clinton could, however, be accused of selling his pardon for Burkle’s contribution.
2. Archie Schaffer
Schaffer, an executive at Arkansas’ Tyson Foods, was convicted in 1998 of giving illegal gifts to former Agriculture Secretary Mike Espy. Espy was acquitted, and Tyson Foods Chairman Don Tyson was given immunity from prosecution in exchange for a guilty plea by his company. Schaffer was sentenced in September to a federally mandated one-year prison term.
Schaffer has the support of the entire Arkansas congressional delegation, which is half Republican, and of Arkansas’ GOP governor, Mike Huckabee. Schaffer is a nephew of former Arkansas Sen. Dale Bumpers, who made a speech supporting Clinton during his impeachment. Schaffer’s wife, Beverly Bassett, was appointed by then-Gov. Clinton to a state board that oversaw Madison Guaranty Savings & Loan, the failed bank at the heart of the Whitewater scandal. Nevertheless, even the Whitewater fanatics at the Wall Street Journal editorial page favor a pardon for Schaffer. Last month Clinton pardoned Phil Winn, a Denver developer who had pleaded guilty to giving illegal gifts to Housing and Urban Development officials.
On the downside for Schaffer: A pardon would affront Robert Ray, one of Schaffer’s prosecutors, who is now the independent counsel deciding whether to indict Clinton when he leaves office.
3. Susan McDougal
Susan McDougal ran the now-notorious Madison Guaranty Savings & Loan in Arkansas with her husband, James. In 1996, she was convicted of illegally obtaining a federally backed $300,000 loan. After refusing to testify in further Whitewater prosecutions, she spent 18 months in jail for contempt. She then served four months of her two-year fraud sentence before a judge released her in June 1998, limiting her sentence to time served, because of her bad back. In early 1999, a federal jury found her not guilty of obstruction of justice for her refusal to testify. The jury deadlocked on contempt charges, and the judge declared a mistrial. McDougal says she refused to testify out of fear that Independent Prosecutor Kenneth Starr would charge her with perjury unless she fingered the Clintons for nonexistent crimes.
McDougal’s refusal to cooperate with Starr has made her an icon among Clinton defenders. In her favor, she has served her time. Had Clinton not become president, she may not have been prosecuted in the first place. However, many believe her refusal to testify indicates a conspiracy to protect the Clintons. And a pardon would affront Ray.
4. Webster Hubbell
Hubbell overbilled clients $400,000 while working at the Rose Law Firm, where Hillary Clinton was a partner. Whitewater prosecutors uncovered the theft while Hubbell was a high-level appointee at the Justice Department, and in 1994 he pleaded guilty to two felonies and agreed to cooperate with prosecutors. (He served 18 months in prison and was stripped of his Arkansas law license.) His testimony led to the felony convictions of several Clinton cronies, but he kept mum about the Clintons themselves. To twist his arm, the independent counsel prosecuted him again, and in 1999 he received a year’s probation after pleading guilty to another felony involving fraudulent legal work.
Today Hubbell gets paid modest sums to speak to accountants about the dangers of fraud. He also works for nonprofit groups advocating prison reform. Unfortunately for Hubbell, a pardon would affront Ray. Also, many believe that money Hubbell received from Clinton friends in 1994 (between his indictment and plea bargain) bought his silence and that his 1999 plea bargain was a conspiracy to keep Hillary off the stand.
5. Jonathan Pollard:
Pollard, an American Jew, applied for a CIA job in the mid-1980s but was rejected after failing a lie-detector test. He became an analyst for the Navy (which was unaware of the CIA rejection) and given access to classified documents. Recruited by Israeli intelligence, he spied for them for a year and a half.
Neither Pollard nor Israel deny that he spied, but his defenders claim that a) the secrets he stole were not vital and never left Israel; and b) his punishment—he is in the 14th year of a life sentence—is harsh for a spy from a friendly nation. Pollard has many lobbyists: As Slate’s David Plotz recounts in this article, Pollard’s case, once the obsession of right-wing Zionists, has become a cause célèbre among mainstream and even left-wing Jews. Three Israeli prime ministers have asked President Clinton for his release.
Unfortunately, the facts paint a dimmer picture of Pollard than his advocates will admit. According to TheNew Yorker’s Seymour Hersh, Pollard gave vitally sensitive information to the Israelis, some of which may have ended up in Moscow. When newspapers reported that Clinton had tentatively agreed to pardon Pollard during the 1998 Wye River peace negotiations, the CIA director threatened to resign. However, with Israel making one last push for peace before its Feb. 6 election for prime minister, Clinton may pardon Pollard if his release becomes a dealmaker.
6. Leonard Peltier
Peltier was an activist for the radical American Indian Movement in the early 1970s. In 1972 he was charged with attempted murder. He was ultimately acquitted, but he jumped bail before the trial began. In 1975, two FBI agents on the Pine Ridge Indian Reservation in South Dakota were shot and killed at point-blank range by men driving Peltier’s car. Peltier and two other suspects were eventually caught separately, each carrying one of the murdered agents’ weapons. Peltier’s two co-defendants were tried first, represented by flamboyant left-wing attorney William Kunstler—who introduced unrelated evidence attesting to the political oppression of Native Americans—and were acquitted. Peltier, not defended by Kunstler, faced both a stricter judge and three eyewitnesses not used in the earlier trial. He admitted to being in the car but claimed that the agents fired first and that he did not deliver the coup de grâce. He was convicted of two counts of first-degree murder. In 1977, he was sentenced to life in prison, with no parole for 30 years.
Then Peter Matthiessen’s 1983 book In The Spirit of Crazy Horse turned Peltier into a worldwide symbol for Native American rights. In 1991 60 Minutes aired a secondhand interview with “Mr. X,” an unidentified man who confessed to the Peltier murders. In 1992 Robert Redford made a pro-Peltier documentary. In November Clinton said he would give Peltier’s application “an honest look-see” before leaving office. Peltier’s defenders, recognizing that George W. Bush will not pardon him, are lobbying Clinton fervently.
But the odds are against him. Crazy Horse has been thoroughly debunked—Matthiessen gave half his royalties to Peltier’s defense fund, his speculations about other AIM-related homicides have proved false, and his conspiracy theory (that the feds wanted to mine Pine Ridge for uranium) has no basis. In a comprehensive article on the case, Outside magazine noted that Mr. X’s confession contradicts ballistics reports from the crime scene. Peltier’s pardon is opposed by FBI Director Louis Freeh and House Judiciary Committee Chairman Henry Hyde. Last week several hundred FBI agents protested against a pardon outside the White House.