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danielle 12-26-2002 11:23 PM

Presidential Pardons
A Presidential Power This President Uses Rarely

WASHINGTON, Dec. 24 There was no Marc Rich. There was no Caspar W. Weinberger. There were no big campaign contributors or old presidential pals.

Instead, the seven men granted pardons by President Bush on Monday could all be characterized as small fry, at least in terms of the crimes they committed and their public visibility. One had stolen $10.90 out of the mail. Another had been caught making moonshine. A third had turned back the odometer on a car.

In choosing them out of the thousands of people who have applied for clemency in recent years, the president seemed to be sending a clear signal that he will use his pardoning power sparingly to avert the kinds of political firestorms set off at the end of their terms by his two immediate predecessors, Bill Clinton and Mr. Bush's father.

It was a decade ago today that the first President Bush, then a lame duck after having been defeated by Mr. Clinton, pardoned six former Reagan administration officials who had been implicated in the Iran-contra scandal. They included Mr. Weinberger, the former defense secretary, who had been scheduled to go on trial two weeks later on charges that he lied to Congress.

It has been nearly two years since Mr. Clinton, in his final hours in office, pardoned Mr. Rich, a fugitive commodities trader whose former wife, Denise, was a friend of Mr. Clinton's and a contributor to his presidential library. Those end-of-term decisions focused considerable attention on whether there were enough safeguards against abuse of the presidential power to pardon federal crimes.

But some lawyers say there is an equally compelling risk that the current president and his successors will be so fearful of setting off another political backlash that they will shy from using a power expressly granted by the Constitution.

"The framers were aware that it was a political action," said Daniel T. Kobil, a law professor at Capital University Law School in Columbus, Ohio, who has studied pardons. "What's different now is that although it's a political power, we're seeing that public officials are so frightened or politically opportunistic that they are unwilling to wield it at all. They don't want to issue anything that could smack of controversy and come back to haunt them."

George Washington was the first president to use the power, granting full pardons in 1795 to the distillers who had fomented the Whiskey Rebellion. Thomas Jefferson pardoned people convicted under the Alien and Sedition Acts, which he opposed.

Presidents have varied widely in the use of their ability to issue pardons and commute sentences. Franklin D. Roosevelt used his clemency powers more than 3,600 times during his four terms. The current president's father did so only 77 times in his single term, according to a list on the Web site of the University of Pittsburgh's law school.

Mr. Clinton took 456 clemency actions, including the 140 pardons he issued as he left the White House. The current president had taken none in nearly two years until the seven announced on Monday. The White House's only comment on Mr. Bush's choices has been to say that the seven men were chosen because they had completed their sentences and gone on to live exemplary lives.

The pardon program is administered by the Justice Department, which takes applications, studies them and makes recommendations to the White House. The president can also issue pardons that do not come to him through the formal process, as Mr. Clinton did in the case of Mr. Rich. Over the years it has become increasingly common for presidents to issue pardons just before Christmas, though there is no constraint on the timing.

Some lawyers involved in the issue said there had long been reluctance on the part of the Justice Department, with its prosecutorial ethos, to view the presidential clemency program as a priority. But they said the current administration appeared particularly unwilling to use the power because of political sensitivity.

"It's curious that with this president's willingness to stretch all his other powers to the max, this is one power he really wants to shrivel up," said Margaret Colgate Love, a pardon lawyer in the Justice Department in the Clinton and first Bush administrations.

Mr. Bush's reluctance to use executive pardon powers goes back to his time as governor of Texas. In 1995, he pardoned a man with an eight-year-old conviction on his record for marijuana possession so the man could work as a constable. A few months later, the man was arrested for stealing cocaine from a police station, exposing Mr. Bush firsthand to the political embarrassment of a pardon gone awry.

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