1,000 Presidential Pardons

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Which do you prefer -- justice or mercy? Most people probably "prefer both," so to speak, with each appropriately meted out to right wrongs and reconcile the lost, respectively. The devil, of course, is in the details. At what point has justice been done and mercy come due?

This is what leaders who hold the power of the pardon must wrestle with, at least theoretically, when deciding whether to invoke a privilege that forgives an offense and erases the criminal record. In practical reality, however, things often work differently. If the presidents of Russia and the United Sates have been wrestling with the pardon dilemma, for example, so far both justice and mercy have been pinned.

Two prominent cases before President Dmitry Medvedev derive from the Yukos affair, a purported fraud and tax evasion proceeding that most observers consider either selective prosecution or a legal vendetta. Former Yukos CEO Mikhail Khodorkovsky has stoically sat out his sentence sewing mittens in Siberia, gradually growing in status as a symbol of justice miscarried and mercy denied -- and now as the worst possible signal to foreign investors when Russia needs them most.

Former Yukos attorney Svetlana Bakhmina is even riper for pardon, it would seem, as her involvement with the company's finances was relatively limited and her life has become the stuff of Dickens. She is the mother of two young children and pregnant with a third, due to be born in prison next month. Over 80,000 Russians, including Mikhail Gorbachev, have signed a petition for Bakhmina's release. And there she sits.

If these cases suggest that the pardon function has been hopelessly skewed in the era of Prime Minister Vladimir Putin and Medvedev, recall two things. First, how the era arrived. To relieve the nation of Boris Yeltsin, a historic leader with flaws to match, a preemptive pardon was required. Putin's first official act as president was to forgive Yeltsin of any and all illegal activities as Russia's chief executive. Put otherwise, defining pardons on some continuum of justice and mercy was essentially a fantasy from day one.

Second, the presidential pardon has a long international history of abuse and misuse, including an infamous U.S. preemptive pardon that long predated Yeltsin's. In 1974, Gerald Ford relieved his predecessor, Richard Nixon -- the kingpin of an administration conservatively termed "a crime wave" -- of any responsibility for "crimes he may have committed against the United States," a long list of presumed felonies never to be fixed in law much less atoned for. This gesture likely cost Ford the election of 1976 and continues to anger millions who took the defining American phrase "justice for all" at face value. Yet this anger did not deter subsequent U.S. presidents from further abuses of the same power.

George H.W. Bush blithely pardoned three high-level Iran-Contra conspirators without arrest or trial. Bill Clinton forgave fugitive billionaire Marc Rich his booming business with an Iranian government that held Americans hostage. And now President George W. Bush, who has already commuted the prison sentence of his vice president's felonious chief of staff, Scooter Libby, stands ready to trump all his predecessors, as a record pile of petitions from criminals great and small grows daily beneath his itching autopen.

Yet the most egregious abuse of the pardon power may already have been committed -- and not by the current president himself, at least technically. In 2006, in a bill to redefine the treatment of detainees, the administration reportedly included a provision that would "pardon President Bush and all the members of his administration of any possible crimes connected with the torture and mistreatment ... all the way back to Sept. 11, 2001." That this bill would render a law at once unprecedented, reprehensible and internationally indefensible was sadly obvious. As CNN's Jack Cafferty summed it up, "At least President Nixon had Gerald Ford to do his dirty work. President Bush is trying to pardon himself."

But let's forbear. As the holiday season looms before us, hopes rise again for good news from the pardon front in both countries. If Khodorkovsky and Bakhmina walk between now and New Year's, it will say something positive about Medvedev and his oft-proclaimed commitment to end "legal nihilism." And in the final 70 days of this failed U.S. administration, the good news may be that the nadir of shamelessness in government has finally been reached. Starting Jan. 20, pardon the audacity, everything will be looking up.

Mark H. Teeter teaches English and Russian-American relations in Moscow.