Trustee Engineers Pardon of First Black U.S. Army Officer

EL SEGUNDO, Calif. (3/22/99) -- Aerospace Corporation Trustee Jeffrey Smith, a partner with the Washington, D.C., law firm of Arnold & Porter, has engineered the first posthumous presidential pardon in U.S. history. The pardon cleared the nation's first black Army officer of a military conviction handed down in 1882.

Lt. Henry Flipper, a former slave and the first black to graduate from West Point, was cleared in February as a result of Smith's efforts.

"This is a story about a triumph of one man and his family," said Smith in an interview with the Orbiter, The Aerospace Corporation's newspaper. It is also a story of camaraderie among a coterie of West Pointers who were determined to overturn an injustice against a fellow graduate who had the courage to break into the ranks.

Flipper was born in 1856. He graduated from the U.S. Military Academy in 1877 and served with distinction for four years at Fort Sill, Okla., before moving to a new post in Texas. There he was charged with embezzlement by his commanding officer.

Flipper was acquitted of the embezzlement charge in a court-martial but was convicted of conduct unbecoming an officer.

Smith said the Army knew it was wrong. "The judge advocate for the Army argued for clemency in 1882, but President [Chester] Arthur wouldn't do it," he explained.

Successful Surveyor, Engineer

Flipper, who went on to attain great success as a surveyor and engineer, could not reverse the conviction received as a young man, despite his many attempts. He died in 1940 at the age of 84.

Smith first heard Flipper's story about five years ago from West Point classmate Tom Carhart, a historian and attorney who was completing his doctoral thesis on African American officers in the military at Princeton University.

It was a discussion of the story with Carhart and Eugene Sullivan, judge of the U.S. Court of Appeals for the Armed Forces and fellow West Point graduate, that proved to be the catalyst for Smith's involvement. Their encouragement and Smith's conviction that honor and justice must be served led him to take the case.

He broached the matter with partners at Arnold & Porter, who agreed to represent Flipper's family on a pro bono basis. Smith, working with Arnold & Porter partner Daryl Jackson, at first considered litigation, but after conducting research, they decided to pursue the pardon.

Smith believed that a pardon was both appropriate and justified. "The president, as commander in chief, has a special responsibility to assure that the military justice system is administered with the highest degree of integrity. There can't be one whiff of discrimination in the justice system," he said.

Because no U.S. president had ever granted a posthumous pardon, Smith would have to convince the Justice Department that the president had the constitutional authority to do so.

Looking to England

He uncovered a number of cases in which pardons had been given posthumously by state governors, but he could find no such pardon by a president. To bolster the argument for overturning Flipper's conviction, he would have to look beyond U.S. borders.

Smith called on the firm's partners in England for assistance. "The pardon authority in the U.S. Constitution derives from the authority of the Crown in England. If the Crown has the authority, the president has the authority," he explained.

Smith said the firm launched a research effort that yielded information on a number of precedents that supported his case.

He submitted the pardon request about a year ago, following four years of preparation. The case proved solid. The pardon was signed by President Bill Clinton in a White House ceremony Feb. 19. Among those in attendance were four generations of Flipper's descendants, military leaders--including retired Gen. Colin Powell--and Smith.

"It made me feel wonderful to see so many African American officers, like Gen. Colin Powell, paying tribute and taking pride in seeing justice served and a good man's name restored," said Smith.

He praised Flipper and his descendants for their character and accomplishments, calling them "a remarkable family." He said the family includes lawyers, doctors, a professor at the Massachusetts Institute of Technology, and "even an Air Force Academy graduate who is now a commercial pilot."

Smith called the pardon "a symbol of a man's triumph over tremendous adversities."

What he didn't describe was his own triumph in setting a historic legal precedent and clearing a fellow cadet of an unjust conviction that had stood for more than 100 years.