Should Bush be allowed to preemptively pardon his administration now?

[Lunar]

http://www.house.gov/apps/list/press/ny08_nadler/PreEmptPardons_112108.html

WASHINGTON, D.C. – Today, Congressman Jerrold Nadler (NY-08), Chair of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, introduced a Resolution in the House of Representatives demanding that President Bush refrain from issuing pre-emptive pardons of senior officials in his Administration during the final 90 days of office.  H.RES.1531 is in response to President Bush’s widespread abuses of power and potentially criminal transgressions against our Constitution.  The Resolution aims to prevent undeserved pardons of officials who may have been co-conspirators in the President’s unconstitutional policies, such as torture, illegal surveillance and curtailing of due process for defendants.

“This Resolution declares that we will not tolerate a last minute attempt by President Bush to shelter his cronies – cronies who may well be guilty of serious criminal offenses – from the full force of the law,” said Rep. Nadler.  “President Bush must not excuse his own officials from possibly illegal acts committed outside the context of their official duties.  Such pardons would merely obfuscate the truth and amount to a gross miscarriage of justice.”

Beyond preventing pre-emptive pardons, the Resolution also recommends the establishment of a special commission or select committee to investigate the potentially illegal activities – including abuse of pardon power – of senior Bush Administration officials.  It also calls for the next Attorney General to appoint an independent counsel to investigate and prosecute any crimes.

The full text of the Resolution follows.
[quote]
H. RES. 1531

RESOLUTION

Expressing the sense of the House of Representatives that the President of the United States should not issue pardons to senior members of his administration during the final 90 days of his term of office.

Whereas Article II, section 2, clause 1, of the Constitution of the United States provides that ‘‘[t]he President . . . shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment’’;

Whereas Alexander Hamilton, in Federalist #74, stated, ‘‘[a]s the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance’’;

Whereas the Supreme Court has observed that ‘‘[a] pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents . . . the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.’’ Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866);

Whereas during the Constitutional convention, George Mason expressed the concern that a president could abuse his pardon power to ‘‘pardon crimes which were advised by himself’’ or, before indictment or conviction, ‘‘to stop inquiry and prevent detection’’;

Whereas James Madison responded to Mason’s concerns by stating that ‘‘f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty’’;

Whereas although not constitutionally binding, the Pardon Attorney’s regulations governing the granting of presidential pardons states ‘‘[n]o petition for pardon should be filed until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction of the petitioner. Generally, no petition should be submitted by a person who is on probation, parole, or supervised release.’’ 28 C.F.R. 1.2 (2000);

Whereas on President George H.W. Bush granted a full, complete, and unconditional pardon to Elliott Abrams, Duane R. Clarridge, Alan Fiers, Clair George, Robert C. McFarlane, and Caspar W. Weinberger for all offenses charged, prosecuted, or committed in connection with the Iran-Contra Scandal in which he was alleged to have been involved;

Whereas in a press conference on February 22, 2001, President George W. Bush stated, ‘‘Should I decide to grant pardons, I will do so in a fair way. I will have the highest of high standards’’;

Whereas investigations by Congressional committees, and press reports, raise serious concerns that senior officials of the administration of President George W. Bush may have committed crimes involving the mistreatment of detainees, the extraordinary rendition of individuals to countries known to engage in torture, illegal surveillance of United States citizens, unlawful leaks of classified information, obstruction of justice, political interference with the conduct of the Justice Department, and other illegal acts;

Whereas President George W. Bush has been urged to grant preemptive pardons to senior administration officials who might face criminal prosecution for actions taken in the course of their official duties; and

Whereas pardons issued during the lame duck period of a President’s term would not be subject to the judgment of the voters; Now, therefore, be it Resolved, That—

(1) it is the sense of the House of Representatives that the granting of preemptive pardons by the President to senior officials of his administration for acts they may have taken in the course of their official duties is a dangerous abuse of the pardon power;

(2) it is the sense of the House of Representatives that the President should not grant preemptive pardons to senior officials in his administration for acts they may have taken in the course of their official duties;

(3) it is the sense of the House of Representatives that James Madison was correct in his observation that ‘‘f the President be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty’’;

(4) it is the sense of the House of Representatives that a special investigative commission, or a Select Committee be tasked with investigating possible illegal activities by senior officials of the administration of President George W. Bush, including, if necessary, any abuse of the President’s pardon power; and

(5) the next Attorney General of the United States appoint an independent counsel to investigate, and, where appropriate, prosecute illegal acts by senior officials of the administration of President George W. Bush.

[MK]

I want to disagree, but in this case I agree with this resolution fully.

[Franzl]

I support the bill, of course.

[minionofmidas]

Could Bush pardon himself?

[A18]

Could Bush pardon himself?

If the literal text of the Constitution is to be taken seriously? Yes.

Article II, § 2, cl. 1: "The President . . . shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

The only two textual limitations are the exception for "Cases of Impeachment," and the requirement that the pardon be for an "Offence[] against the United States."

[Queen Mum Inks.LWC]

I agree with the resolution.  You can't pardon somebody preemptively.

[Lunar]

I agree with the resolution.  You can't pardon somebody preemptively.

I wonder if Carter set a precedent by pardoning all draft-dodgers, one assumes most of them hadn't been convicted or even charged.  At least Carter would have still been president to enforce his pardon should any of them be charged, though.

[Associate Justice PiT]

I agree with the resolution.  You can't pardon somebody preemptively.

I wonder if Carter set a precedent by pardoning all draft-dodgers, one assumes most of them hadn't been convicted or even charged.  At least Carter would have still been president to enforce his pardon should any of them be charged, though.

     There's also the famous case of President Wilson preemptively pardoning Burdick to make him divulge his sources.

     Anyway, the President has an unlimited executive right to pardon whomever he wants, whenever he wants, for whatever he wants. Whether it is electorally smart for him to do so is another question entirely.

[Lunar]

I don't think term-limited presidents with approval ratings that couldn't possibility get any lower have much to worry about in the "electorally smart" area.

[minionofmidas]

Could Bush pardon himself?

If the literal text of the Constitution is to be taken seriously? Yes.

Well is there a body of published opinion on the issue?

[Lunar]

Uh, Constitutional scholars do disagree on this point.  I think there is a body of published work (but you have to Google it yourself ).

[Associate Justice PiT]

Uh, Constitutional scholars do disagree on this point.  I think there is a body of published work (but you have to Google it yourself ).

     Does The Federalist touch on this at all?

[A18]

Could Bush pardon himself?

If the literal text of the Constitution is to be taken seriously? Yes.

Well is there a body of published opinion on the issue?

Of course. For a regrettable attempt to explain away the text, see Brian C. Kalt, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, 106 Yale L.J. 779 (1996). Then there's always the Constitution itself, which says something quite different.

[??????????]

Bush can do whatever he wants in this regard. No resolution can stop him. Plus, he won't do it anyways. Why would innocent people need pardons?

[Fmr. Pres. Duke]

Bush can do whatever he wants in this regard. No resolution can stop him. Plus, he won't do it anyways. Why would innocent people need pardons?

You see. Part of Obama's new kind of politics involves viciously going after the outgoing Republican President. I hope he doesn't, but I wouldn't put it past him. The Clinton Administration wants to get back at the Republicans for what they did to them in 1999.

[??????????]

Bush can do whatever he wants in this regard. No resolution can stop him. Plus, he won't do it anyways. Why would innocent people need pardons?

You see. Part of Obama's new kind of politics involves viciously going after the outgoing Republican President. I hope he doesn't, but I wouldn't put it past him. The Clinton Administration wants to get back at the Republicans for what they did to them in 1999.

The first thing I'd do is remove all the B and O keys off the White House computers. Much like the Clinton folks took all the "W"'s off in 2000.

[Fmr. Pres. Duke]

Bush can do whatever he wants in this regard. No resolution can stop him. Plus, he won't do it anyways. Why would innocent people need pardons?

You see. Part of Obama's new kind of politics involves viciously going after the outgoing Republican President. I hope he doesn't, but I wouldn't put it past him. The Clinton Administration wants to get back at the Republicans for what they did to them in 1999.

The first thing I'd do is remove all the B and O keys off the White House computers. Much like the Clinton folks took all the "W"'s off in 2000.

Bush won't do it, though. The funny thing is if he did, Obama would begin running ads telling the American people he was above such divisiveness or, better yet, blog on his change.gov site. 

[Lunar]

Bush can do whatever he wants in this regard. No resolution can stop him. Plus, he won't do it anyways. Why would innocent people need pardons?

So the Vice President's Chief of Staff, Scooter Libby, was an isolated incident and no inner documents might roll a couple other heads?    Not over the judicial firings or the Plame case?  Not a single guilty abuse of power by a single bureaucrat?  Surely you share my distrust and skepticism in government at least somewhat.

[Franzl]

Bush can do whatever he wants in this regard. No resolution can stop him. Plus, he won't do it anyways. Why would innocent people need pardons?

So the Vice President's Chief of Staff, Scooter Libby, was an isolated incident and no inner documents might roll a couple other heads?    Not over the judicial firings or the Plame case?  Not a single guilty abuse of power by a single bureaucrat?  Surely you share my distrust and skepticism in government at least somewhat.

Funny actually....States was just saying something about owning guns meaning "not letting your government walk over you" (or something like that)....and now he shows, as you correctly notice...absolutely no skepticism in the Bush administration.....Perhaps such skepticism only develops during Democratic rule?

[??????????]

Bush can do whatever he wants in this regard. No resolution can stop him. Plus, he won't do it anyways. Why would innocent people need pardons?

So the Vice President's Chief of Staff, Scooter Libby, was an isolated incident and no inner documents might roll a couple other heads?    Not over the judicial firings or the Plame case?  Not a single guilty abuse of power by a single bureaucrat?  Surely you share my distrust and skepticism in government at least somewhat.

Funny actually....States was just saying something about owning guns meaning "not letting your government walk over you" (or something like that)....and now he shows, as you correctly notice...absolutely no skepticism in the Bush administration.....Perhaps such skepticism only develops during Democratic rule?

What a stupid attempt to connect the dots. I've been critical of the Bush Administrations fiscal policies, fool.

[Franzl]

Bush can do whatever he wants in this regard. No resolution can stop him. Plus, he won't do it anyways. Why would innocent people need pardons?

So the Vice President's Chief of Staff, Scooter Libby, was an isolated incident and no inner documents might roll a couple other heads?    Not over the judicial firings or the Plame case?  Not a single guilty abuse of power by a single bureaucrat?  Surely you share my distrust and skepticism in government at least somewhat.

Funny actually....States was just saying something about owning guns meaning "not letting your government walk over you" (or something like that)....and now he shows, as you correctly notice...absolutely no skepticism in the Bush administration.....Perhaps such skepticism only develops during Democratic rule?

What a stupid attempt to connect the dots. I've been critical of the Bush Administrations fiscal policies, fool.

And I don't dispute that...of course not.

But criticizing policy is not the same as an accusation of misconduct. You're not the least bit skeptical about anything that Lunar mentioned?

[??????????]

It's hard to tell what's the truth and what's overt Bush hatred in the media. And I don't mean that as hubris, I seriously mean that. If the media had been a little more objective over the past eight years I'd lend more credibility to anything they say.

[Queen Mum Inks.LWC]

I agree with the resolution.  You can't pardon somebody preemptively.

I wonder if Carter set a precedent by pardoning all draft-dodgers, one assumes most of them hadn't been convicted or even charged.  At least Carter would have still been president to enforce his pardon should any of them be charged, though.

And I think that was a bad (if not even illegal) call on Carter's behalf.

[Lunar]

Indeed, but I mean, we know that such a pardon move is doable.  I wonder about the legality of preemptively pardoning everyone before they are charged, but apparently it is doable in America.

[Queen Mum Inks.LWC]

Indeed, but I mean, we know that such a pardon move is doable.  I wonder about the legality of preemptively pardoning everyone before they are charged, but apparently it is doable in America.

Doable and legal are 2 different things.  Honestly, who really cared about challenging a draft dodger pardon?