Saturday, July 26, 2008

Pardon Me!

Now that the end is near, thoughts are turning to transitional issues for the Bush Administration. Probably the biggest issue for many (besides bombing Iran) is a presidential pardon.

The NYTimes recently had article by Charlie Savage, Felons Seeking Bush Pardon Near a Record, discussing the number of pending pardon requests. As part of the discussion, the issue of pre-emptive pardons was mentioned:

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.

Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons — whether or not anyone made a specific request for one. They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.

“The president should pre-empt any long-term investigations,” said Victoria Toensing, who was a Justice Department counterterrorism official in the Reagan administration. “If we don’t protect these people who are proceeding in good faith, no one will ever take chances.”

Emily Lawrimore, a White House spokeswoman, would not say whether the administration was considering pre-emptive pardons, nor whether it would rule them out.

“We are going to decline to comment on that question since it is regarding internal matters,” Ms. Lawrimore wrote in an e-mail message.

This is an issue that is beginning to be pondered by many. See, e.g., Crime? What Crime? No Crime Here. Now Get Lost.

This was also a topic of discussion at dinner last week with a group of friends, including the Dean of one of the Philly law schools. We all agreed that Bush was going to give a bunch of going away presents to all his buddies.

After all, preemptive pardons are encompassed within the scope of the pardon power. See Can President Bush pardon people who haven't even been charged with a crime?. The only restriction on the Presidential Pardon power is impeachment. So long as Bush does it before he's impeached, Bush can (and no doubt will) pardon himself.

The view that a president can pardon himself is not totally without question (since it's never been done), but it is the clear majority view that the President as the power to do so.

Before Nixon resigned, he apparently considered a self-pardon. The story is that Nixon prepared a Memo outlining his ability to pardon himself, which Alexander Haig then gave to then-VP Ford. This was part of an attempt to strike a deal with Ford to have him pardon Nixon if he resigned. Although that story has been the subject of some controversy (whether Ford actually agreed to pardon Nixon as a condition of Nixon agreeing to resign without doing it himself), it's likely that that's how it happened. As we all know, shortly after assuming office, Ford did in fact pardon Nixon.

Of course, the only problem for Bush would be if he were to be impeached. Despite the hearings held yesterday by the Judiciary Committee, impeachment is has as much a chance of happening as the reinstatement of our constitutional rights during the reign of Bush.

Finally, as the NYTimes article notes, when the Bush Administration first came into office, they were extremely critical of the pardons issued by Bill Clinton. But things are different now. It's the Bush Administration, not the Clinton Administration. And, as we all know, 9/11 changed everything.

I have no doubt Bush will do it as he walks out the door. It will be his final F-U to us all!

(Cartoon via Steve Sack, Star Tribune)

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