News
2000

"Injustice Anywhere is a Threat to Justice Everywhere:" Lt. Henry O. Flipper Receives the First Posthumous Presidential Pardon in U.S. History

Arnold & Porter Article

INTRODUCTION

On February 19, 1999, President William Jefferson Clinton granted the first posthumous Presidential pardon in our nation's history. The recipient was Lt. Henry Ossian Flipper, the first African-American graduate of West Point and the first African-American commissioned officer in the regular United States Army. Lt. Flipper was dismissed from the Army in 1882 after a court-martial, for conduct unbecoming an officer and a gentleman. His court-martial and dismissal have long been seen as a grave miscarriage of justice. Indeed, some military historians describe Lt. Flipper's treatment as having left an "ugly scar" on the military justice system.

A group of West Point graduates seeking to clear Lt. Flipper's name sought out fellow West Point graduate Jeffrey Smith here at Arnold & Porter. Smith enlisted my assistance, which I was happy to provide, having first learned about Lt. Flipper and his ordeal when I was a youngster. Joining the team were Edward Sisson and Helene Krasnoff, as well as summer associates J. Benjamin King, Christine Koh and David Fine, among others.

Believing Dr. Martin Luther King's admonition in his Letter From A Birmingham Jail, that "injustice anywhere is a threat to justice everywhere," we set out to right a past wrong. To accomplish that task, we ultimately submitted two documents to the U.S. Department of Justice and the President: a pardon petition and a legal brief in support thereof. Both documents were exhaustively researched and each had a supporting set of exhibits that included historical materials. The total volume of materials we submitted to the government exceeded 600 pages.

In seeking a posthumous pardon for Lt. Flipper, we faced considerable barriers. It had long been the policy of the Pardon Attorney of the U.S. Department of Justice not to accept or process posthumous pardon applications. Cases decided during the early days of our country dictate that posthumous pardons cannot and should not be granted by the President, according to the Pardon Attorney.

The pardon petition and legal brief we submitted to the President attacked those legal and policy barriers, and also set forth the factual and legal case for the pardon. In conducting our research, we examined evidence that is over 100 years old, including Lt. Flipper's court-martial, and other records. Our research took us to England; we also examined U.S. constitutional authorities, and conducted research in various States.

I. THE FACTUAL CASE FOR LT. FLIPPER'S POSTHUMOUS PARDON

The facts favoring a posthumous pardon for Lt. Flipper were compelling. Lt. Flipper was an American patriot and hero, who met with a miscarriage of justice because of his race. Restoring his good name and remedying the injustice he suffered was an important step forward for our nation, especially in light of the significance of Lt. Flipper's contributions to his country. We set forth the factual case for the pardon in our pardon petition and supporting exhibits.

A. Lt. Flipper at West Point and as a Soldier

As a soldier, Lt. Flipper was a trailblazer who, despite the overwhelming resistance he faced, cleared the path for others who, until then, had been barred from fully serving in the military. He was born a slave in Thomasville, Georgia in 1856. He was the fifth African-American to enter West Point, and in 1877, became the first to graduate. He endured unremitting racial ostracism from his fellow cadets during his West Point years.

He went on to become the first African-American officer to command units of the U.S. Army -- the legendary "Buffalo Soldiers," who served in the 9th and 10th Cavalry. He was tested in battle. As an Army engineer, he designed and constructed "Flipper's Ditch," a system that drained the malarial swamps around Ft. Sill, Oklahoma, and saved many lives. No other Army engineer assigned to this task had been able to accomplish it. Lt. Flipper's work is still in use today -- over 100 years after its construction. In 1975, the U.S. Department of the Interior designated "Flipper's Ditch" a National Historic Landmark.

B. The Deficiency Arises

In addition to his many other duties, in 1880, Lt. Flipper became the Acting Commissary officer at Ft. Davis, Texas, supervising the accounting and payments from persons buying goods, such as food and uniforms, from the Army. In mid-1881, he discovered a deficiency of approximately $2,400 in the funds entrusted to him. Lt. Flipper recognized this as a reprise of earlier efforts to force him out of West Point because of his race. The "Reconstruction" era was over; pressure to keep the officer corps all-white was growing. He knew that all African-American cadets before and after him had been court-martialed and dismissed because they erroneously presumed they could rely upon their fellow cadets. He feared he would face the same treatment if he reported the deficiency. Thus, he attempted to keep it secret until he personally could replace it. He hoped to do so from the proceeds of a royalties check he was expecting from sales of his autobiography, The Colored Cadet at West Point, which was in its second edition, and is still in print today.

C. The Arrest and Court-Martial

However, the fort commander discovered the deficiency before Lt. Flipper was able to replace it. Contrary to Army regulations barring confinement of an officer in a guardhouse, the fort commander jailed Lt. Flipper in an extremely small cell under the hot August sun in Texas. The cell was so small that the legs of his bed had to be sawed off in order to move it in. Merchants and others in the nearby town of Chihuahua, Texas, convinced of Lt. Flipper's innocence, immediately pooled their funds and replaced entire deficiency within two days, in the hopes that Lt. Flipper would be freed. He remained confined, however.

The War Department, upon learning of Lt. Flipper's blatant mistreatment, fired off a telegram to Lt. Flipper's superiors at Ft. Davis, which stated that "Both the Secretary of War and the General of the Army require that this officer must have the same treatment as though he were white." Lt. Flipper was ultimately released and confined to his quarters, in accordance with Army regulations -- but the bias persisted.

A 30-day court-martial ensued, during which a spirited and vigorous defense was mounted by Lt. Flipper's counsel. Many of the townspeople and merchants with whom Lt. Flipper had dealt as Acting Commissary testified to his good character. Unexplained wealth on the part of Lt. Flipper in the remote, frontier setting of Ft. Davis immediately would have been apparent. The absence of such evidence, coupled with the good character defense and other favorable evidence, caused the collapse of the prosecution's case on the lead charge of embezzlement. Lt. Flipper was acquitted of that offense. However, he was found guilty of the lesser offense of conduct unbecoming an officer and a gentleman -- the mandatory penalty for which was dismissal from the Army.

The basis of his conviction for conduct unbecoming an officer and a gentleman was, in essence, that he had misled his superiors as to the status of the missing funds. As his defense counsel eloquently argued during summation, Lt. Flipper's conduct in that regard was rationally based. The Army had isolated Lt. Flipper and taught him that he could rely only upon himself. He had succeeded by doing so, whereas his fellow African American cadets had all failed when they acted to the contrary.

In his written statement submitted to the court-martial, Lt. Flipper stated that he had "indulged what proved to be a false hope that I would be able to work out my responsibility alone, and avoid giving [his superiors] any knowledge of my embarrassment."

What happened to the money entrusted to Lt. Flipper has been the topic of much speculation, and is likely to remain a mystery. He seems to have believed the money was stolen from his quarters by his fellow officers in an effort to cause his dismissal from the Army. He unquestionably was surrounded by fellow officers and superiors who did not wish him well. Whether he was provided a place separate from his quarters for the safe-keeping of the money was a subject of dispute at the trial. Separate and distinct from the animosity he experienced from his fellow officers, Lt. Flipper's maid was present when his quarters were searched and was found with thousands of dollars in checks on her person that had been entrusted to Lt. Flipper. Formal charges were filed against her in federal court as a result. Lt. Flipper's effort to introduce evidence concerning those charges during his own trial was disallowed, however.

D. The President Confirms the Conviction

No judicial review of courts-martial existed in those days. Rather, administrative review was conducted by the military, and the President had the ultimate responsibility for confirming or modifying the judgment.

On administrative review, the Judge Advocate General of the Army argued that Lt. Flipper's conviction and the penalty imposed upon him were too harsh. White officers who had been court-martialed for much more serious offenses -- including crimes of violence -- were convicted solely of lesser charges and allowed to remain in the Army. Nevertheless, in 1882 President Chester A. Arthur confirmed Lt. Flipper's conviction, whereupon the commissioned officer corps of the Army returned to its prior status of being all white.

E. Success in Post-Army Life

After his dismissal from the Army, Lt. Flipper continued his life in a truly heroic manner. Since the quality of the life one has lived post-conviction is the factual touchstone for granting a pardon, Lt. Flipper unquestionably met the standard. Indeed, his accomplishments and contributions to his country undoubtedly far exceed those of many others who receive presidential pardons.

Lt. Flipper promptly established practice in the Arizona Territory as a professional civil and mining engineer and land title expert -- another first for an African-American. He also used his considerable skill as a Spanish translator in his practice. In 1891, the town of Nogales retained him to defend it in the newly-created Court of Private Land Claims against a plaintiff's claim that an old Spanish grant gave him title to most of the town. Lt. Flipper proved the title invalid. The citizens paraded him through town as a hero.

1. Return to Government Service - the U.S. Department of Justice

Lt. Flipper's success attracted the attention of the newly-appointed U.S. Attorney for the Court of Private Land Claims, Matthew Reynolds. Reynolds needed to appoint a Special Agent to work with him to expose fraudulent claims regarding Mexican and Spanish land grants in the Southwest as the United States took sovereignty over that territory. The U.S. Attorney General specifically approved Lt. Flipper being hired as Special Agent for the U.S. Department of Justice and, in 1893 -- 12 years after his court-martial conviction -- Lt. Flipper again entered the service of the United States. Lt. Flipper worked closely with Reynolds for seven years, obtaining court judgments, striking fraudulent land claims and clearing land titles. Much of the resulting litigation reached the U.S. Supreme Court, where the government's position repeatedly was sustained.

In 1900, Lt. Flipper returned to private practice until 1919, when he was 63 years old. Among his notable accomplishments were his researches into the location of the fabled "Lost Tayopa" Spanish gold mine of the Sierra Madre in Mexico. Lt. Flipper described his post-West Point life in another book that remains in print today, The Black Frontiersman, written in 1916.

2. Service in the U.S. Senate and U.S. Department of the Interior

Lt. Flipper impressed mining and oil company executive Albert B. Fall, who later became a United States Senator from New Mexico. In 1919, Senator Fall appointed Lt. Flipper to the staff of the Senate Committee on Foreign Relations, and for the third time, Lt. Flipper entered the service of his country. He assisted the Committee in understanding intelligence information concerning the Mexican Revolution, including Communist efforts in the Yucatan. When Fall subsequently became Secretary of the Interior in 1922, he chose Lt. Flipper as his Special Assistant on the Alaskan Engineer Commission, responsible for charting railroad lines in the Alaska Territory. Fall repeatedly attested to Lt. Flipper's high character and accomplishments and supported Congressional efforts to enact a private bill to clear his name, but none succeeded.

3. Praise for Lt. Flipper's Government Service

Lt. Flipper's work was widely praised by the high government officials for whom he worked. For example, the 1904 annual report of the Attorney General of the United States to Congress praises Lt. Flipper for his "fidelity, integrity and magnificent ability" as a special agent of the U.S. Department of Justice.

The U.S. Attorney for the Court of Private Land Claims, after conducting a careful investigation into Lt. Flipper's background, including the court-martial, described Lt. Flipper in U.S. Supreme Court briefs as being "the best equipped, most efficient, competent, reliable and trustworthy man" to perform the necessary duties to protect the U.S. government's interests in the private land claims litigation. In discussing Lt. Flipper's skills as a translator, the U.S. Attorney said "the accuracy of his translations [of Spanish laws in the land claims cases], even the coloring of a word has never been questioned by any Spanish scholar of standing . . ." and that "all of his translations, investigations and reports have stood the test of adverse and rigorous investigation."

Albert B. Fall, a leading New Mexico lawyer and mining company executive, United States Senator and later Secretary of the Interior, who appointed Lt. Flipper to several government positions, repeatedly attested to Lt. Flipper's high character and accomplishments.

5. Continued Success in Private Industry

In 1923, at age 67, Lt. Flipper left government service for the last time.

His considerable skills were sought by a number of private companies during his career, including corporations involved in copper, silver, and gold mining in Mexico, and oil companies active in South America. His standing among his peers is illustrated by the following: The project manager for one of these companies -- an engineer who had been a private in the Confederate 1st Arkansas Cavalry -- knew of and wanted to hire Lt. Flipper. However, the owners refused to do so because of Lt. Flipper's race. Upon learning of this, the manager told the owners that they had the choice of either firing him or hiring Lt. Flipper. Lt. Flipper was hired.

Lt. Flipper's final retirement occurred in 1930 at age 74. He had served 37 years in private industry and 20 years with the United States.

II. THE FIGHT TO CLEAR LT. FLIPPER'S NAME

Despite his contributions, Lt. Flipper was unsuccessful in his fight to clear his name. He attempted to do so several times from the 1890's through the 1920's, primarily through legislative means, as well as by seeking Presidential assistance. He died in Atlanta, Georgia in 1940 at age 84.

A. The Army Grants Lt. Flipper a Posthumous Honorable Discharge

Others continued where Lt. Flipper's efforts had ended. In the 1970s, Lt. Flipper's niece, Irsle Flipper King, along with a Georgia schoolteacher, Ray MacColl, presented the Army with a petition seeking reversal of Lt. Flipper's conviction.

After reviewing the matter, in 1977, the Army Board for Correction of Military Records ("ABCMR") granted a posthumous honorable discharge to Lt. Flipper, finding that his treatment was "unduly harsh" and "unjust." The ABCMR recognized that Lt. Flipper faced unique circumstances as the only African-American officer in the Army, and said credence was due his belief that he could not confide in his white fellow officers concerning the deficiency. The ABCMR also stated that the missing funds could have been taken by other persons unknown and the evidence tended to show Lt. Flipper may not have been provided with adequate means to properly safeguard the funds. The ABCMR stated that it lacked the power to overturn Lt. Flipper's conviction, however, since such relief was outside the statutory purpose of the Board. Similarly, it could not pardon Lt. Flipper, since the Constitution grants that power exclusively to the President.

B. Posthumous Honors

After the ABCMR's action, a procession of additional posthumous honors were bestowed upon Lt. Flipper by the State of Georgia, West Point, the Army and the United States. In 1977, the Governor of Georgia, by executive order, proclaimed a day in Lt. Flipper's honor. That same year, West Point dedicated a bust and a portion of its library in Lt. Flipper's honor, and also established an award in his name to be given annually to a graduating cadet who has overcome particular adversity. In 1978, the Army reburied Lt. Flipper in his hometown of Thomasville, Georgia, with full military honors. In 1989, Georgia placed an historical marker at his gravesite. As a result of legislation introduced in the Congress, in December of 1998, the U.S. Postal facility in Thomasville, Georgia was named after Lt. Flipper.

However, the final step in clearing his name -- obtaining a presidential pardon -- remained to be accomplished.

III. THE LEGAL CASE FOR THE PARDON

In our legal brief to the President, we set forth the legal support favoring a posthumous pardon for Lt. Flipper and rebutted the Pardon Attorney's long-standing legal and policy arguments against granting such pardons.

We began by discussing the fact that presidential pardons are granted to remove stigma, to signal forgiveness, and to correct injustices. Lt. Flipper clearly was entitled to a pardon, given the patent injustice he suffered, as well as his exemplary life and extraordinary service to his country after his conviction.

We further argued that the President has a special responsibility, as Commander in Chief, to ensure the integrity of the military justice system, and thus, should right this past wrong.

Next, we asserted that the Pardon Attorney's position that posthumous pardon requests cannot be granted was flawed. Among other things, the Pardon Attorney's position was based upon outdated legal authorities that consider a pardon a "deed" that must be accepted by the recipient in order to be valid. We distinguished the Pardon Attorney's authorities from more modern legal authorities, which focus upon whether granting a pardon will promote the public welfare. We argued that the modern authorities indicate that the President has the constitutional power to grant posthumous pardons.

We also advanced the critical point that, because the President's pardon power under the Constitution is coextensive with that of the British Crown in 1789, the fact that the Crown has granted posthumous pardons demonstrates that the President also possesses the power to do so. Arnold & Porter's London Office worked with us to develop the factual underpinnings for this argument.

The pardon power in the States is at least as expansive as that given to the President. Factual research we conducted revealed that State governors have granted posthumous pardons, further bolstering our argument that the President has the power to do so.

Additional factual research in the States was critical to our rebuttal of the Pardon Attorney's concern that granting Lt. Flipper a posthumous pardon would cause the "floodgates" to open to additional such requests. Our research revealed that the States that had granted posthumous pardons had not experienced a flood of posthumous pardon requests. Indeed, many of those States had received no such subsequent requests. We further argued that any additional administrative burdens the Pardon Attorney may experience from an increase in the filing of posthumous pardon petitions pales beside the importance of correcting injustices.

Finally, we argued that, under the totality of the circumstances, granting the pardon would promote the public welfare, which is the modern legal standard for whether a pardon should be granted.

We were successful in obtaining bipartisan support for the pardon from the Congress. We also developed support from many other quarters, including the Army and the Department of Defense, former members of the military, national organizations that keep the memory of the Buffalo Soldiers alive, and Pulitzer-Prize winning author and Princeton history professor James McPherson.

IV. THE FIRST POSTHUMOUS PRESIDENTIAL PARDON IS GRANTED

President Clinton granted Lt. Flipper the first posthumous presidential pardon at a White House ceremony on February 19, 1999, and stated that it was "117 years overdue." In granting the pardon, the President fulfilled the words of abolitionist Thomas Parker: "The moral arc of the universe is long, but it bends toward justice."

The Flipper family had become our client, and four generations of Lt. Flipper's relatives from around the country attended the White House ceremony. Also in attendance was General Colin Powell, who eloquently wrote in his autobiography of the tremendous influence Lt. Flipper had as a trailblazer on his own career. General Powell had kept a print of Lt. Flipper on the wall of his office when he was Chairman of the Joint Chiefs of Staff. The White House ceremony was broadcast on television, and newspapers throughout the country, as well as in England, France, and at least as far as Turkey, featured articles about the pardon.

By virtue of his accomplishments, Lt. Flipper will continue to be written about and studied. However, as the President said, "This good man has now completely recovered his good name." That is as it should be -- and more than half a century after his death, Lt. Flipper continues in his role as a trailblazer.

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