02/05/2014 03:43 pm ET Updated Apr 07, 2014

A Snowden Pardon Would Not Set a 'Dangerous Precedent'

Two lawmakers in Norway announced Tuesday that they have nominated Edward Snowden as a candidate for the Nobel Peace Prize. The announcement comes amid a pair of debates surrounding the actions of the infamous NSA whistleblower.

The first debate -- perhaps the more sexy and compelling of the two -- is in vogue in barbershops and diners, civics classrooms and gym locker rooms across the country. It's the one that recently arose over dinner in my fraternity house, when Brandon, a journalism major and a vocal advocate of free expression, called Snowden a hero.

Greg -- a friend of Brandon's whose first birthday present was a .22 caliber rifle and who spent his early days on a sprawling Texas ranch -- responded, rushed and emphatic: "Why don't we just tell all criminals that it's okay to break the law, as long as it's for a just cause?" The tension that so separates Brandon and Greg is emblematic of the ideological gulf between Snowden's advocates and his detractors.

The other debate on Snowden, however -- perhaps less stimulating, but nonetheless significant -- lines the pages of op-ed sections and hides deep within the innards of the blogosphere. It's not about whether Snowden's choices were qualitatively good or bad; it's about the implications of letting him off without punishment.

A few weeks ago, The New York Times' editorial board ushered us into a new chapter of the whistleblower conversation. In its first major opinion of the year, the board argued that Snowden -- upstaged for TIME magazine's title of "Person of the Year" only by the world's premier religious leader -- deserved "a plea bargain or some form of clemency that would allow him to return home," or at the very least be offered "substantially reduced punishment" for exposing troves of incriminating evidence against the US intelligence community.

After the Times' piece came a firestorm of pushback. Clemency for Snowden would be a slippery slope, critics said. A sign of weakness, enticement for America's miscreants, the dawn of an era in which moral integrity would trump invariably legality. We'd kiss jurisprudence goodbye as the streets trembled with stampedes of ex-cons, like something out of the Lion King.

I'm exaggerating, of course -- but only a bit. Following the editorial, Business Insider's Josh Barrow turned rapidly to the web, tweeting that the argument was "a radical case against our diplomatic and intel apparatus" cast in an "oddly casual" light. New York's Senator Chuck Schumer told reporters that if Snowden believed himself in earnest to be the pinnacle of a "grand tradition of civil disobedience," he could prove his bona fides by facing the legal system he so vehemently condemned.

In general, the counterargument to the Times' editorial went something like this: We are a nation of laws. Those who break the law must be subject to punishment. Edward Snowden broke the law and must accordingly be subject to punishment.

At best, that's a specious argument. Realistically, it's naïve and simplistic.

Rebutting Barrow, The Atlantic's Conor Friedersdorf pointed out that a pardon for Snowden wouldn't set a precedent of any sort -- let alone a dangerous one. The concept of clemency exists "precisely because there are instances when applying rules we've generally decided upon would be unjust and counterproductive," he argued.

Friedersdorf is right. Clemency is never the rule; by definition, it's the exception. Most Americans live their full lives on the legal thoroughfare, without slipping into the dim alleyways of true crime. Of the minority who commit serious offenses and put society at risk, a proportionately tiny number lands any form of presidential mercy.

The system works on the basis of consistency and the understanding that those who seek to subvert the rightful order must first consider their choice in the context of its consequences. But the Constitution makes room for anomalies -- special cases that merit deviation from that consistency.

Article II, Section 2, Clause 1:

"The President...shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

And grant them they have.

American presidents have offered legal leniency to those who have committed sedition, land fraud, extortion, and robbery; to citizens who have refused to testify in federal court and those convicted of forgery. They have pardoned polygamists and draft-dodgers, mutinists and murderers. Presidents have forgiven Americans for voluntary manslaughter and for accepting illegal bribes; for opening fire in the House of Representatives; for attempting to assassinate a president; for tax evasion, treason, and violating neutrality laws. And, yes -- for perjury, blasphemy, and disloyalty, and for breaches of the Espionage Act.

Indeed, there are better justifications floating in the political milieu for ending Snowden's asylum in Russia and bringing him to justice in the United States: Most lawbreakers who are granted pardons are first subjected to the legal system -- and accordingly, a legal ruling. In trial, details about these cases come under full and exhaustive scrutiny. The public can hear and study the arguments in favor and against the person in question.

Even so, worries of creating new norms remain untenable. The law works because it's steady and uniform, reliable and stable. Law itself is the precedent to normative societal action. Following it isn't novel; it's the way things work.

Edward Snowden broke the law. And presidents can pardon lawbreakers.

Clemency for Edward Snowden would not forge a new model for law in the United States. President Obama would simply be embracing his place in a long line of executives who have used their constitutional prerogative to identify those whom they deem worthy of clemency. Presidents can exonerate lawbreakers. That's the precedent; whether it's a dangerous one is a question to pose to history, not to President Obama.

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