While we’re all reflecting on the life of President George H.W. Bush, let us remember his famous Christmas pardons. They will go down in history as one of his finest hours. They’re relevant today, too, because of the precedent Bush set for President Trump, who has been wrestling with whether — or when — to use the least fettered of presidential powers in respect of Russia-gate.
The similarities of Bush 41’s Christmas pardons with Mr. Trump’s predicament aren’t exact. They’re enough, though, to offer up much to think about as we wait for Robert Mueller to show his hand. Bush unsheathed the pardon to “decapitate” — to borrow the word Reuters news wire used — the six-year-long investigation by an independent prosecutor, Lawrence Walsh.
Judge Walsh, who once sat on the bench here at New York, had been looking into the Iran-Contra affair. That involved the diversion to the anti-communist Contras fighting Nicaragua of money from arms sales to Iran. The probe started under President Reagan, and continued into Bush’s presidency. Bush used the pardon, a writer for Politico was prepared to state flatly, “in order to protect himself.”
Walsh was named independent counsel in late 1986. An appeals court threw out his first big convictions, of Reagan’s national security adviser, Admiral John Poindexter, and an aide, Colonel Oliver North. That was in 1991. The appeals court concluded Walsh failed to make adequate protection against using tainted evidence. Walsh should have packed his bags right then and gone back to Oklahoma.
Walsh instead made a mewling appeal to the Supreme Court. The appeal did not, as the Times would later put it, “appear to interest the Justices.” They turned Walsh down colder than a mackerel. Walsh plunged on, though, hooked on the crack-cocaine-like hubris to which independence makes prosecutors inherently susceptible. In June 1992, he gained an indictment of Caspar Weinberger.
Walsh indicted Reagan’s ex-defense secretary even though a presidential election was looming. The charges were perjury and obstruction, but a court promptly threw out the obstruction charge. On October 30, Walsh brought another indictment of Weinberger. It mentioned — cast shade on — President Bush himself, though he was standing for re-election in four days.
That attempt to influence the election was shocking. Even Lanny Davis, a partisan of Bill Clinton, Bush’s opponent, would later write that the reference to Bush was made “gratuitously and unnecessarily.” Yet it took until December 11 for a court to find that the indictment was not only insidious but illegal. Meantime, Bush lost the election to Clinton, albeit by a margin wide enough to spare Walsh the blame.
Did Bush pace the White House fearing that he was the last man left for Walsh to target? We don’t know. We do know that, in a fell swoop, Bush preemptively pardoned Weinberger on Christmas eve. Bush also cleared five other figures. They included the neoconservative foreign policy sage Elliott Abrams, who’d been fined $50 for the misdemeanor of withholding information from Congress.
The left went bananas. Walsh issued a bitter statement (the video is above). The New York Times called the pardon “unpardonable.” Bush himself remained implicated in the scandal, it reckoned, “and in that sense he has shamelessly pardoned himself.” Walsh hinted that he might yet go after Bush. Yet a generation later, as the mortal remains of the president lie in state, hosannas are being sung from the left and right.
Why are the Christmas pardons not an issue and what does that tell us about President Trump’s prospects? Our own view is that the country has come to realize that it was a profound wrong for Walsh to glancingly suggest in a court filing that Bush might be guilty of a crime. It was a constitutional wrong for Congress and the courts to give a prosecutor independence in the first place.
Alexander Hamilton, in 74 Federalist, makes clear that the Founders considered that a president might use the pardon to cover his own “connivance.” They gave it to him anyhow. So Lawrence Walsh was wrong to suggest, as he did after the Christmas pardons, that Bush had undermined “the principle that no man is above the law.” Bush remembered the right lesson, and Mr. Trump should, too: The Constitution and the pardon power are not above the law. They are the law.