Saturday, December 06, 2008

Begging Your Pardon

With the nomination of Eric Holder for Attorney General, there has been a bit of a hue & cry over the fact that he was involved in the 2001 pardon of Marc Rich by former President Clinton. This strikes me as odd, since the real pardon issue for me has been whether George Bush will issue preemptive, blanket pardons for various government officials involved in domestic spying and torture programs during the reign of Bush. See Pardon Me!.

As to the latter issue, it seems fairly clear that Bush can do so, whether we like it or not. In a Slate Explainer, Jacob Liebenluft notes, Can President Bush pardon people who haven't even been charged with a crime?:

Yep. In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power "extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time—regardless of whether charges have even been filed.

As the Explainer has pointed out before, there aren't many limits to the president's pardon power, at least when it comes to criminal prosecutions under federal law. The president's clemency power has its origins in the practices of the English monarchy, and as a result, the Supreme Court has given the president wide leeway under Article II, Section 2 of the Constitution. There are some exceptions: The chief executive can't pardon someone for a violation of state law or nullify a civil ruling, and his power doesn't extend to convictions handed down in an impeachment proceeding. (It's also not clear whether the president can pardon himself for future convictions.)
After the Rich pardon, which especially incensed the Clinton-haters, Congressional hearings were held to look into the circumstances surrounding the pardon. However, some questioned whether such hearings were even constitutional, since the President's pardon power is absolute. As Emily Yoffe explains, in a Slate Explainer column, Are the Congressional Pardon Hearings Constitutional?:
Since Clinton's pardon power is absolute, what can all the congressional and judicial probes do anyway? For one thing, Congress could always decide once was not enough, and re-impeach Clinton, as this "Explainer" explains. And while the courts can't overturn Clinton's pardons, they can examine the circumstances under which they were granted. If the courts were to find, for example, that Clinton granted Marc Rich his pardon in exchange for a time-share at a Swiss chalet, that could lead to indictments on bribery charges.
It always seemed to me that the post-pardon Rich matter was in essence "sour grapes," because various congressional members just didn't like the fact that Clinton decided to pardon this particular bad guy. Yet surprisingly, the reaction was less outraged when Bush granted clemency to Scooter Libby, who outed a CIA agent, a far more serious transgression. By leaking Valerie Plame's name, the lives of other covert agents could have been jeopardized.

Despite the fact that Holder is almost universally lauded for his intelligence, experience and skills, Plenty of Praise for Eric Holder as new AG, the utterance of 4 words regarding the Rich pardon has inexplicably tarnished a stellar career. See Holder, High Achiever Poised to Scale New Heights, First of all, whatever input Holder may have had, it was Clinton who granted the pardon, not Holder. And, the fact is that a pardon necessarily requires a wrongdoing that is forgiven, so whoever gets pardoned is necessarily someone who is not exactly an upstanding citizen. Thus, the need for a pardon. In the end, as NPR notes, Will The Rich Pardon Trip Up Obama's Pick For AG?:
Patrick Leahy of Vermont chairs the Senate Judiciary Committee, and he's friends with Holder. "I don't think President Clinton should have made the pardon," Leahy said, "but I don't blame Eric Holder for that. He's not the one that recommended the pardon. He's not the one that did the pardon."
After the NYTimes piece praising Holder, another Times article, Pardon Is Back in Focus for the Justice Nominee, describes a much more involved role by Holder in the lead up to the pardon of Rich. The culmination of which was Holder's recommendation -- "neutral, leaning toward favorable." What would ordinarily be deemed to be damming with faint praise has been somehow recast as a lapse in judgment.

After describing Holder's involvement in the Rich affair, Glenn Greenwald, who originally labeled Holder's role a "blemish" -- and a peripheral one, given his minor part in the Rich drama, reconsidered his opinion after the NYTimes piece. In Eric Holder, Jack Quinn and the Rich pardon, Greenwald expresses a concern that the intervention of Holder in the episode demonstrates that he may have diffficulties "saying no to power."

Maybe I'm dense, but I just don't see the level of involvement to be untoward. Holder did make inquiries on Rich's behalf, but he never exerted any pressure, subtle or otherwise, with the pending case in New York or the pardon itself. See also, Hatchet Job on Eric Holder in the NYT. The worse case scenerio, as I see it, is expressed by Vitelius of Brainiac Conspiracy, in The Benefit of the Doubt:
Simply put, the Rich pardon---and Eric Holder’s role in it---was a garden-variety example of status-quo Beltway back-scratching, as Glennzilla reminds us today; you are never going to be 100-percent rid of it entirely, given the current political climate, and if we are going to ask each of Obama’s Cabinet officers to possess the morality of saints and the wisdom of the ancients as qualifications for admission, he might as well forget about appointing anyone who has spent any amount of time cultivating a career in Washington (i.e., qualified candidates to run the government), and ask if the Dalai Lama and Desmond Tutu are available instead.
See also, I wonder how they can still say this with a straight face.

Or, as Vanity Fair so eloquently sums it up, Marc Rich Set to Ruin Another Democratic Administration:
Everyone’s worried about Barack Obama’s appointment of Eric Holder as attorney general because he pardoned Marc Rich on, like, the last day of the Clinton administration. Whatever: W. just pardoned an elitist cocaine trafficker!
In a final irony about the whole matter, Scooter Libby will most likely be looking for a pardon from Bush before he leaves office. Convicted Felons to Prez Bush: 'I Beg Your Pardon'. Before his time helping Dick Cheney subvert the constitution, The Scooter was also Marc Rich's lawyer for many years. With Rich, Libby and Holder in the News -- It's Like 2001 All Over Again.

(Cartoon via Pat Oliphant, NYTimes)

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