Balkinization  

Thursday, October 20, 2005

Bush's Ace in the Hole-- The Pardon Power

JB

Rumors are buzzing about who will be indicted in the Plamegate scandal, and what further revelations will develop. Some people have even speculated that the Vice-President may be indicted or named as an unindicted co-conspirator.

But just remember that the President always has the means to stop judicial proceedings of his closest political associates from going any further. He can simply pardon persons indicted for a crime, or even those who have not yet been indicted.

On December 24th, 1992, a month before he left office, President Bush's father, George H.W. Bush, pardoned former Defense Secretary Caspar Weinberger and five other individuals for their conduct related to the Iran-Contra affair. In so doing, Bush not only put an end to the criminal prosecutions arising out of the Iran-Contra affair, he also ensured that he would never be required to testify as a witness in a criminal trial after he left office. The former President was no fool. He knew that for many years critics refused to believe his repeated protestations that he was "out of the loop" on the machinations surrounding Iran-Contra during the Reagan Administration. Once under oath, he would be required to divulge exactly what he knew and when he knew it.

If sufficiently high level officials are indicted, his son, President George W. Bush, may also be vulnerable to be called as a witness and placed under oath. The most obvious way to avoid that unhappy scenario is to make sure that no criminal trial ever occurs. The pardon power takes care of that.

The President's power to pardon is effectively unreviewable. The only real constraint is political: the President must take the political heat for his actions, as Gerald Ford did in pardoning President Richard Nixon. Bush's father was able to pardon Weinberger et al. a month before his term expired, so he had very little to lose politically, and he wagered (correctly as it turned out) that most people would soon forget the potential self-dealing in his decision. Bill Clinton also took considerable heat for his last minute pardons of political supporters near the end of his presidency, but he too figured (also correctly) that this too, would pass.

George W. Bush, by contrast, is in the first year of his second term. Although unlike Gerald Ford he will not stand for reelection, like Ford he must govern for several more years, and he is already in a politically weak position. That would counsel not invoking the pardon power for as long as he possibly can.

If important persons in the Bush Administration are indicted, and there is a significant danger that revelations damaging to the President will surface, don't be surprised if the President uses his ace in the hole-- the pardon power. Some might argue that the President simply wouldn't dare; others will insist that he would be impeached if he tries it. But what the President is likely to do depends on the alternatives if he doesn't act, and remember, the Congress is controlled by members of his own party, not by the opposition as was the case during the Clinton Presidency. This president has a knack for self-preservation; and if the pardon power is the best alternative he has, you can be sure that he will use it.


Comments:

Bush can't pardon himself, and if he pardons all of the other members of the conspiracy they no longer have a 5th-amendment shield against being compelled to testify against him.

So while Bush can't be indicted while in office, he would leave himself with a large potential liability downstream, and a reliance on the kindness of his successor.
 

It bothers me too that one of the Iran-Contra figures Bush '41 pardoned is now in charge of gathering information about every American. The "gathering information" much more than the "pardon" part. I am very much in favor of clemency. I think our criminal laws in the past twenty-five years have become far too harsh. However, I don't think that the Valerie Plame theater will go anywhere. I know a little about criminal law and I have yet to see a crime having been committed. All the likely suspects can afford good defenses and if indicted they will be acquitted.
 

My thoughts regarding pardons has been similar to attobuoy's.

* Bush can't pardon himself.
* Considering Gerald Ford's example, I doubt any successor would pardon Bush.
* And why would Bush set himself up to be the only person prosecuted for these deeds?

One of the fundamental motivations I've seen of this crowd has been grabbing personal power for themselves. They will ignore professed ideologies if they can rake in the slightest bit more.

Because of that, the formerly-unified front is falling apart. Nobody's going to fall on their sword for the good of the team. Instead, they're starting to turn on one another. The situation is quickly turning into "every man for himself." Already two of Cheney's aides are openly working with the prosecutor. And as the distrust grows, more people are going to look to cut a deal.
 

I'm curious that you don't mention any of Bill Clinton's pardons. But that wouldn't go over well in the Faculty Club, would it? Still, it's no wonder that those of use who don't belong to the Faculty Club have nothing but contempt for your dishonesty and hyocrisy.
 

sean, in the interests of fairness, read the original post again. the clinton pardons are mentioned in about the same tone as the rest of pardons discussed. while we know you don't like clinton, and for some reason you don't like academics, perhaps you will agree after re-reading the post that you missed something here?
 

sean only got half the memo.

In addition to the Clinton pardons, he was required to also make snarky comments about Bush pardoning Joe Wilson, because according to the memo, Wilson's the only one Fitzgerald's going to indict.

He has forfeited valuable Team Leader points by this oversight....
 

Those bastards! I like, "He wouldn't dare!" But Jack is right, he would (will!).
 

The President cannot pardon himself ... has this been determined?

As to his own liability, do we really think he will be criminally indicted after leaving office? That leaves impeachment (sorry, unlikely) and more tellingly civil litigation.

Pardons won't stop that and the Wilsons suggested they will sue if necessary.
 

And thanks to Paula Jones, the Wilsons can depose under oath all the way up to the Pres.
 

You're right, but so what? Unlike Starr, who broke grand jury secrecy, Fitzgerald hasn't, so, despite all these panting stories in the press about how this is going to take this admin. down, no one really knows if this will amount to anything of substance. It seems like a lot of masturbating to a picture of a woman no one's seen yet.
 

George W, unlike his dad, is clearly in the loop, so much so that the word loopy comes to mind. Just add Rove, Libby et al to the Ken Lay lay-away- pardon-plan, to be used just before George W cashes out his lame duck term. None of these gents is going to fall on his sword for the George W team. Worse yet is that no one will fall on his sword for the good of the country.
 

Have been in the thick and froth of the near-manic hysteria on the left, riding the Fitzgerald/Plame investigation roller coaster. Mr Balkin's sage reminder is a cold splash of water on our "ding-dong, the King is dead!" parade.

Tempered my build-up-to-bursting with Georgia's, "Dealing with Fitzmas" (http://g10.blogspot.com/2005/10/dealing-with-fitzmas.html).

Passed Justin Raimondo's story, "Niger Uranium Mystery Solved?" (http://www.antiwar.com/justin/?articleid=7681), around the blogosphere two days ago with my snide tag line: 'Ledeen should swing.'

Wrote, 'Let's continue to hope that Fitzgerald finds the monumental courage he will need, as the history of our country is right now poised to take a monumental turn on the basis of his decision.,' here: http://liberalgirlnextdoor.blogspot.com/2005/10/im-prosecutorman.html


Hit a crescendo yesterday with James Moore's, "The Most Important Criminal Case in American History" (http://www.huffingtonpost.com/jim-moore/the-most-important-crimin_b_9183.html), near certain of Shrub & Co. going down hard in some kind of epochal global scandal and national atonement (visions of impeachment, war crimes trials, major upheaval).

But today, with this salient reminder . . . Someone cue the durge music, please.

I still have to believe that the indictments, which may go to "misleadiing the country into war," will make a difference.

p.s. Balkin, Lederman, Horton, et al -- you guys are "spot on" with the "anti-torture memos." Thank you!
 

With the media either deeply in the rightwing's pockets or thoroughly intimidated Bush will not hesitate to pardon anyone in his administration who seems likely to go to trial.

Face it. All three branches of government are controlled by corrupt Republicans. All those nice checks and balances devised by the founders are useless.

With the neutering of the Fourth Estate the last mechanism to counterbalance the concentration of power has gone by the wayside.

The proof is the rehabilitation of Poindexter et al who were pardoned by Bush's dad. The successful appointment of Abrams, Poindexter et al shows that being convicted and then pardoned no longer means your political career is dead.

Look at the lack of outrage over taking the country to war for fraudulent reasons.

Actually our only hope is that the right wing implodes. Obviously the Dems are impotent.
 

The CIA leak is small (though highly entertaining) potatos folks...

18 USC 2441 is the red meat for this administration, and oooops --

There is no pardon or immunity for war crimes.

Not even for judges who aid and abet the crimes by ruling otherwise.
 

I'm with Joe; anyone got a precedent for Bush's inability to pardon himself?

Because standards of ordinary decency don't apply.

Disagree? Yeah, and I bet you think that Justice Miers would recuse herself from any cases involving W. or issues she participated in. Right.
 

anyone got a precedent for Bush's inability to pardon himself?

I'm not a lawyer. I'm not even a US citizen. But I don't think any US President has ever tried this. If they had, we'd have seen lots of posts about President Scumbag pardoning himself.

I'm not even sure that Bush-the-slightly-smarter's pre-emptive pardons had any US precedent. There's nothing in the Constitution to prevent it, but it smacks of cheating. I can just about conceive of situations where it would be justifiable, but I'm not sure that any have ever happened. You'd probably have to search through Blackstone (UK law) to stand a chance of finding one.

Can a president pardon himself? If he has enough buddies on the SCOTUS, probably yes. Even a pre-emptive pardon. That would be a hell of a precedent to set, though, because every future president would grant himself a pre-emptive pardon at the beginning of his term for any and all crimes he might commit during that term. Even the "strict constructionalists" would have a hard job setting that precedent. Oh, I forgot Florida - they'd say it only applies to Dumbya and doesn't set a precedent.

However, there is one thing the Constitution specifically prohibits the president granting a pardon for: impeachment. So Dumbya cannot issue himself a pre-emptive pardon against impeachment. There's another thing in the Constitution: a successful impeachment does not prevent the person impeached then facing court in criminal or civil procedings for the offences which got him impeached.

Best hope? Fitz doesn't indict Bush or name him as an unindicted co-conspirator. Bush issues a load of pre-emptive pardons to protect the others but not one for himself (doesn't need one because he's not been named). That raises such a stench that his own party turn against him and impeach him. Fitz then pulls some judicial rabbit out of a hat that then lets him indict Bush.
 

we have been doing some impeachment polling - you may have seen the one last week where 50% favoured impeachment. we are going to be releasing another one next week.

keep an eye out for it
 

Under the Constitution, a president can not pardon anyone who is impeached. A senate conviction for impeachment is not necessary to prohibit a pardon; the house impeachment is enough.

Any governmental offical can be impeached. If the Dems can regain the house and impeach them all, any presidential pardons will be overruled.
 

Here is something all should consider. Article 2, Section 2, Clause 1 of the Constitution clearly says:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
 

The constitution says that the President cannot grant pardons "in Cases of Impeachment".

Theoretically Bush could issue pardons for Rove and Libby only to have Fitzgerald seek to have them overturned on the arguement that evidence points to the President's involvement in the crime which would make it a potential Case of Impeachment. This is highly unlikely and the SCOTUS has the final say on interpreting the constitution and would probably let Bush off, but it is a possibility
 

Obviously, no President has ever pardoned himself; however, there's nothing contained in Article 2, Section 2, Clause 1 (or in any other part of the Constitution,) US Code or, obviously, case law, that states that he can't.

As stated earlier, there exists virtually no limit on Presidential pardon powers. Although their codified statement is brief, the Founding Fathers in their deliberations regarding this power believed that mercy (which was the original foundation of the pardon) was best invested in a single person, rather than the mob mentality of the legislature.

I'll now step down from my podium. There will, however, be a quiz on this next Tuesday.
 

This comment has been removed by a blog administrator.
 

The impeachment process would not be Patrick Fitzgerald's concern but Congress' ... I also would think that only "ongoing" impeachments are at stake, not potential ones.

Finally, impeachments deal with removal and perhaps inability to serve in the future. Pardons (and "reprieves") are broader -- dealing with punishment as well.

There is a traditional principle that one can't judge one's own case, but Bush v. Gore et. al. suggests it isn't absolute.
 

As usual, Rep. John Conyers was out front on this:

http://www.house.gov/judiciary_democrats/letters/prespardonltr72505.pdf
I'm guessing he didn't get a response.
 

I'm not sure if my link works?
http://www.house.gov/judiciary_democrats/letters/prespardonltr72505.pdf
 

There is a limit on the Presidential power of pardons. The Consstitution says that power is removed in cases of impeachment.

There is no time frame on when impeachment needs to occur either because it can be used to remove someone from office or to prevent someone from holding office.

Some of the pardoned individuals of the past should have been impeached to prevent them from holding office in the future.

I think the pardon of Richard Nixon could have been overturned had the house decided to impeach him. I think they felt it would have been bad for the country so the deferred to the parodon of Gerald Ford.

Likewise, I think many of the Iran Contra pardons could have also been overturned. If they had been, through the impeachment process, maybe we suold not have had some of them back infecting our government again.
 

If he does this what can be said about his accountabilty? He ran as the anti-Clinton
 

Maybe we can send Bush to Canada and get him pardoned. Maybe the people at ww.canadianpardons.ca can help it out.

I’m told that pardons are really easily to obtain in Canada.
 

Maybe we can send Bush to Canada and get him pardoned. Maybe the people at ww.canadianpardons.ca can help it out.

I’m told that pardons are really easily to obtain in Canada.
 

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