ON Sept. 15, 1787, two days before the Constitutional Convention ended, Edmund Randolph of Virginia expressed alarm about the authority being given to presidents to issue pardons. A president could, he said, use it to undermine the Constitution. For 200 years, presidents have issued pardons almost routinely, and Randolph needn't have worried. Now, for the first time, his fears will be realized if President Reagan pardons John Poindexter and Oliver North.
The authority of pardon is one of a president's most awesome powers. There is only one restraint; he can't pardon people who've been impeached. Otherwise, his authority is unlimited.
Despite the nearly absolute quality of the pardoning power, it gets little scholarly or public attention. In 1882, a survey found some favoritism in pardons for officers who had been court-martialed. A thorough study in 1941 did not even mention the hazard that Randolph foresaw. Current college texts skim lightly over the pardoning power.
Thus, for two centuries this land mine has lain buried in the Constitution. Only the self-restraint of past presidents has kept it from endangering the heart of our checks-and-balances system.
The Constitution says the president ``shall have power to grant reprieves and pardons for offenses against the United States.'' Historically, presidents have used this as a check on the courts. As an act of clemency, they can give relief if the courts have been unduly harsh, or if there has been a mistake in enforcing criminal law. President Reagan has already granted 333 pardons.
But if pardons were granted in the Iran-contra affair, they would not correct flaws in the criminal-justice process, but excuse illegal acts done on behalf of the president himself. No president has pardoned top-level aides for criminal acts integral to his own policies. Not even President Ford's pardon of Richard Nixon fits this category.
This is precisely what worried Randolph and others. Because of his unlimited power to pardon, a president could pardon close aides acting illegally on his behalf, in effect pardoning himself. Randolph's warning in 1787 was blunt: ``The President may himself be guilty. The traitors may be his own instruments.''
The same danger was cited by 21 opponents of the Constitution in Pennsylvania's ratifying convention.
In the Iran-contra trials the defendants are the president's men. If he didn't know what they were doing, he should have, as the Tower Commission pointed out. He calls them ``heroes.'' As chief executive, the responsibility is his.
If Mr. Reagan now pardons those who carried them out, he would do the very thing Randolph warned against.
This break with tradition would set a dangerous precedent. Will a future president be tempted to continue the practice whenever he finds himself frustrated by Congress, a court ruling, or even the Constitution itself? A wink and a nod, perhaps some off-the-record instructions, and his men can do their work unimpeded by the carefully wrought checks and balances of our system. His men can be assured of a pardon if they get caught.
Former President Nixon said on April 10 that he now thinks he should have pardoned his aides John Ehrlichman and H.R. Haldeman. Such an act would have put the President's own illegal schemes, enacted by his own men, beyond the law. A president that could place himself above the Constitution and beyond its checks and balances was not what the Founding Fathers had in mind.
A president's authority to ``screen from punishment'' is supreme. Here's how West's ``US Code Annotated'' (1987) summarizes some key court rulings:
``Presidential pardoning power flows from the Constitution alone, not from any legislative enactment, and it cannot be modified, abridged, or diminished by the Congress.
``There can be no offense against the United States, except cases of impeachment, over which the President has not an absolute pardoning power.
``A pardon may be absolute or conditional.
``The power of pardon neither requires nor authorizes the President to enter into an investigation of facts, not set up nor proven at the trial....
``President could exercise his discretion ... for whatever reason he deemed appropriate, including political reasons, and it was not for courts to inquire into rationale of his decision.
``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 offense.''
The potential for abuse is great; there are few deterrents. Will pardoning participants in the Iran-contra affair hurt GOP chances for electing Vice-President George Bush? In Reagan's case he can wait until after November's election to pardon his aides. If Bush wins, he won't bear the onus, as Gerald Ford did.
Will concern for his place in history deter a president from pardoning illegal acts done on his behalf? Not if he believes those who acted for him were ``heroic,'' as Reagan does.
Indeed, who decides if the actions were illegal? This is the crux of the issue.
If courts decide, the accused will be accountable to laws established by the Constitution and the people's representatives in Congress. It's a system which demands that everyone, including presidents, be held accountable. It is a government of laws.
If the president decides the issue of legality - by shielding his staff (and his policies) from the courts - he eludes the protective checks and balances crafted by the founders. It becomes a government of men, not laws. When presidents permit aides to commit illegal acts, then pardon them, they place themselves beyond accountability. They become judges of their own actions. This would set a new and dangerous precedent.
Paul Robert Spagnuolo is an associate professor of history at Ferris State University. Wendell Mott is an associate professor of political science at the same institution.