Will President Bush Issue a Blanket Pardon?

225px-george-w-bushThere is growing speculation that President Bush will issue pardons for the unlawful domestic surveillance program and torture program in his waning days in office. Such a pardon would be welcomed not only by his allies but some Democrats who have previously blocked any serious investigation into alleged crimes by the Administration. The pressure for pardons may be increasing with some in the Democratic ranks are publicly talking about serious investigations. I discussed this with Rachel Maddow.

A “blanket pardon” would raise serious constitutional and criminal questions, though there is some precedent in the Kennedy and Carter administrations. A traditional pardon is a public document naming individuals who are pardoned for specific crimes. One possibility being discussed is the use of a blanket pardon that would not individually name people but cover anyone associated with the unlawful programs. It would be a terrible precedent, if upheld. A president could pardon the world at the end of an Administration — gutting any accountability for criminal acts.

In the meantime, the Democrats are suggesting yet another commission to investigate the program. This suggestion has been greeted with collective groans from many who viewed the 9-11 Commission to be something of a bad joke. Not only did the Commission not push hard enough for information, but it entirely missed many of the later disclosed controversies. It was also composed of the usual suspects — well-wired Democratic and Republican activists who guaranteed that the conclusions would not prove too damaging for their respective parties.

Some scholars, however, seem to welcome the prospect of a blanket pardon, or at least see some positive elements to it. Kermit Roosevelt at the University of Pennsylvania Law School told Salon that such a pardon would make the work of a commission easier: “Holding people accountable is certainly nice, but in terms of healing the country and moving forward, so is actually getting a clear picture of what happened and letting the public make an informed decision. If we had a pardon followed by something like a truth and reconciliation commission, that might not be such a bad outcome.”

I could not disagree more. We regularly have commissions in this city, which have largely been ridiculed in history and will be seen as another Beltway sidestep. For such a commission to work, it would require GOP and Democratic members to appoint truly aggressive commissioners — not the same warmed-over advisers from prior administrations who are long on resumes and short on independence. More importantly, it is not clear that such witnesses would testify without immunity grants — arguing that the pardon would not necessarily protect them from any and all criminal prosecutions. Finally, there is nothing that brings out cooperative witnesses more than the threat of prosecution. Once that threat is gone, I expect many will pull an Alberto Gonzales and claim memory lapses at critical junctures.

We already saw tremendous abuse of the pardon power by Bill Clinton — including the shocking use of this official power to benefit a close family member. With polls showing that he is the least popular president in modern history, Bush may feel a bit of freedom, even recklessness, in following suit with his own pardon abuses.

For the full story, click here.

46 thoughts on “Will President Bush Issue a Blanket Pardon?

  1. Thank you Mr. Turley. My disappointment in the way this country is going compels me to consider leaving. We’re hanging by a thread here. If Bush and Cheney are not punished, then all is lost and we are just going to be a third world country, armed to the teeth. I can live like that now, in Costa Rica. At least the poisonous snakes down there are real and not just politicians lying to me. If we’re heading towards Dictatorship, I’d appreciate a little more honesty, but I guess that’d be tipping their hand. Take care.

  2. John

    I am not a big fan of constitutional amendments as they are used for political purposes. A structural change, on the other hand, I can be for. I have thought about this since the Scooter Libby disaster, and would propose one that would be something like “A president may not pardon or commute any one in his/her administration for crimes committed during the administration”

  3. “A Washington Post article today on the need to restore confidence in the Justice Department quotes former high-level Clinton DOJ official Robert Litt urging the new Obama administration to avoid any investigations or prosecutions of Bush lawbreaking:” (to continue reading go to the link below).

    http://www.salon.com/opinion/greenwald/

    What are options here? It’s really looking like the fix is in.

  4. He can’t give a blanket pardon to everybody for acting on his own illegal policies.

    By doing so, in effect, is an admission of guilt and for that I think he need everybody’s ‘permission’.

    I say, let him go ahead! ;)

  5. How to proceed with prosecuting those who perpetrated crimes against the Constitution? I’m for it. How can an airhead like me help?

  6. I have stated before that I believe in fully investigating all of the alleged Bush crimes. I do not think that Bush will do a blanket pardon because he would be admitting that he committed a crime and he won’t admit to any mistake. I do not see what the problem is in investigating the Bush regime. The Republicans spent millions to try to get Clinton and didn’t hesitate to bring impeachment charges against him. Whether you agree with the validity of those charges, that precedent of holidng the President accountable for his alleged lawbreaking, should prove to Obama to honor the rule of law and hold every guilty party, no matter how high up the ladder, accountable for their crimes, if the investigations find evidence of crimes.

  7. Jill:

    “This would still leave them open to state charges as you mentioned before, wouldn’t it?”

    Actually, the real issue appears to be whether Bush can pardon himself and his co-conspirators.

    ‘aliquis non debet esse judex in propria causa’ No man can be the judge in his own cause.

    And who can forget this little ditty?

    “AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.”

    So, to answer your question Jill, I’d say a strong state argument could still be made against the validity of such a pardon.

  8. rafflaw,

    Professor Turley wrote a law review entitled “From Pillar to Post: The Prosecution of American Presidents” a few years ago; however while he did address the viability of state claims against the president, I don’t recall whether he broached the topic of blanket pardons.

    Nonetheless, if you saw Prof. Turley on Rachel Maddow’s show last night, you’d see he’s pretty much taking a wait and (god forbid) see approach. The closest comparison he made to the possibility of Bush granting blanket pardons to his co-conspirators and himself was recalling how Clinton abused the pardon power by granting clemency to a family member.

    The issue, so far as I see, is two fold; first, whether a president can pardon his co-conspirators and himself and second, whether the element of fraud & or tyranny vitiates such pardons, thereby negating any Article VI requirement that the states surrender their police power to such fraud.

    That may seem like question begging or posing a semi-complex question at first blush; however in lieu of another definition of an executive using his office to commit crime and thence absolve himself and his co-conspirators under color of law, I’m afraid I’m at a loss as to how to characterize the phenomena any other way.

    Regards,

    Bob

  9. JT, I finally sought you out after reading ‘From Pillar to Post’ during the ‘Fredo Fiasco’ in the summer of 2007 and proceeded to sing your praises to all the ‘big deals’ in my state and beyond, who would listen. Many were intrigued and even comforted by the ‘possibilities’.

    I must say, it’s been frustrating not seeing the masses ‘rise up’ more, which is what would have been required to put the brakes on this administration’s series of abuses.

    Perhaps we can find some solace in the massive turnout for this election.

  10. There were a lot of people quoting you a year ago, apparently! This article from November 11, 2007 has an interesting instructional comment. I wish I had seen it then…

    http://www.atlanticfreepress.com/content/view/2804/81/

    p.s. I’m opening up a bottle of Spann Charbono (no Turley, here) to serve with Lobster ‘Fra Diavolo’ pizzas. Cheers! Everybody go buy some Maine lobster and make a stew or a bisque.

  11. For numerous reasons listed elsewhere, I too want to see the Bush Administration on trial for their crimes. To me, it narrows down to credibility of the rule of law. If they are not punished for violating the Constitution, then any other judgment by any court is not worth the paper it’s printed on. All law is ultimately an appeal to authority. If that authority is compromised and/or unjust, then the law is not credible. If our law isn’t credible, then we are not credible in international affairs. Credibility was our #1 foreign affairs asset before The Chimp and Darth Cheney began their final attack on the American Checkbook with that shock and awe that has so endeared us to not just our real enemies, but our allies as well (not that anyone in Bushland can tell the difference). It won’t be cheap or easy to regain the trusts damaged and image lost.

    It’s not a partisan issue. They could be from the Moon Is Green Cheese Party for all I care. No one is above the law, let alone the core tenets of our legal system. Torture? Warrantless domestic spying? Blatant theft? I think not. The criminals MUST be punished. If not, I for one will consider future compliance optional. Let’s say I’d consider it a material breach of the social contract. Hey, what’s good for the goose . . . And I am patient. I realize these things take time and I am willing to give Obama the chance to set things right. But the time line for effectiveness in mending our international standing and the limits of my patience are finite. Justice demands they face the bar. Sooner rather than later.

  12. I encourage everyone to read the information at both links provided in the article. I am an adequately educated individual, although I never learned some of the information, and definitely not the detail, from the history or civics classes I took that I am now learning within this forum and from the associated links.
    Article II of the U.S. Constitution–regarding the power of pardons–requires serious revision and amendment, given the documented abuses by presidents in recent administrations.

    Article II

    Section 2: Presidential Powers

    Clause 1: Command of military; Opinions of cabinet secretaries; Pardons

    Ultimately, the framers of the U.S. Constitution gave the greatest power of all to the electorate. Recently, the voters registered their extreme displeasure with the criminal and corrupt Bush Administration and prevented the possible continuation of those abuses by voting against the Republican ticket in a clear mandate repudiating such malfeasance in high public office.

    Now it is up to President-elect Obama and the Democrats to pursue the corrupt individuals that have ruined the once-proud global reputation the U.S.A. exemplified. The articles presented in the original post and links lay out the numerous possible pitfalls; however, if the Obama Administration does not investigate the abuses of office in a fair and firm manner, then a large reason for the voters’ mandate will remain unfulfilled.

    Although I am a conservative 30-year registered Republican, Bush et al. has tarnished and denigrated the Republican Party and its platform of limited government and self-reliance that I still strongly espouse. Rendering fair and corrective punishment is critical to help ensure that no political party or individual can ever again abuse the powers of the Executive Branch as the Bush Administration has done.

    Compassion and forgiveness are admirable traits and characteristic of most Americans. However, corrupt individuals like Bush et al. understand this and use compassionate forgiveness as part of their strategy while abusing their power. Meting out punishment commensurate with the crime must occur to serve as an effective deterrent and as a solemn reminder to other administrations or any public servants that might seek to abuse the U.S. Constitution or the rights of all citizens contained within that time-honored and vital document.

  13. Buddha/FFLEO:

    Justice is conscience, not a personal conscience but the conscience of the whole of humanity. Those who clearly recognize the voice of their own conscience usually recognize also the voice of justice.

    –Alexander Solzhenitsyn

  14. for those who ‘missed it’, first… (see below)

    Article II

    Section 2: Presidential Powers

    Clause 1: Command of military; Opinions of cabinet secretaries; Pardons
    Clause 1: Command of military; Opinions of cabinet secretaries; Pardons

    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 Offenses against the United States, except in Cases of Impeachment.

    The President is the military’s commander-in-chief; however Article One gives Congress and not the President the authority to declare war. Presidents have often deployed troops with Congressional authorization, but without an explicit declaration of war. (Since WW II, every major military action has been technically a U.S. military operation or a U.N. “police action”, which are deemed legally legitimate because of decisions such as the Gulf of Tonkin Resolution, Authorization for Use of Force by Congress, and various U.N. Resolutions. This is also true in the case of the Korean War, which was only retroactively deemed a war — 50 years to the day, after the fact — by a ceremonial Act of Congress.)

    The President may require the “principal officer” of any executive department to tender his advice in writing. Thus, implicitly, the Constitution creates a Cabinet that includes the principal officers of the various departments.

    The President, furthermore, may grant pardon or reprieves, except in cases of impeachment. Originally, the pardon could be rejected by the convict. In Biddle v. Perovich, however, the Supreme Court reversed the doctrine, ruling that “a pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”


    http://jonathanturley.org/2007/12/08/justice-and-cia-launch-investiga
    tions-into-destroyed-tapes/
    =

  15. Bob,Esq.,
    I agree with your framing of the issues. I did see Prof. Turley’s appearance on Rachel Maddow’s show. I am not sure I agree entirely with his comparison to the Clinton pardon of a relative, but I understand that it was the closest precedent to a President pardoning himself. I fully agree with his concept of the State and Federal charges for the President’s actions.
    We can only hope that charges will be brought after January 20th, 2009.

  16. What is more prescient is the idea of a Constitutional crises…!!!

    This president from the beginning was a disaster in the making.

    Just ask his anybody in his own family!

    I know this because I worked at one of the best hospitals in the country and for someone, who I trusted invariably, who also went to Yale, who also had a long Yale family history, lived in the South, and who also knew the Bushes very well because his grandfather’s Urology practice in Virginia was one dedicated to ‘the stars’…

    Our practice was no different in that regard except that we catered to all – not just the privileged. That’s why I loved working with him -in particular.

    My former mentor is now deceased, but that does not diminish his first hand observations…

  17. I have a serious question. Outside of Ford’s a priori pardon of Nixon, are there any other cases of a pardon being given before a conviction?

    Since, the Constitution gives Congress the power to grant immunity and the President the power to pardon, wouldn’t any Presidential pardon granted before a conviction be unconstitutional as it would actually constitute immunity, a power not granted to the President?

    I have never seen this point made anywhere, but it seems obvious.

  18. Mark,
    That is a good queston, but it is above my pay grade. I am sure someone on here will have the answer. I do remember in Nixon’s case that the House was close to bring Articles of Impeachment when Republicans met with him and told him the time had come for his resignation. It is possible(my opinion) that Nixon may have demanded an agreement for a pardon before his acceptance of the resignation idea. I don’t remember reading anything about it then, but I may have missed something.

  19. […] 15, 2008 by gronberg Law prof Jonathan Turley, I see from my referrer log, agrees with me that a blanket pardon for Bush administration officials involved in torture is a Constitutionally dubious…: A “blanket pardon” would raise serious constitutional and criminal questions, though there is […]

  20. No one here is saying it is time to ‘move on’ with regard to this adminsotrations actions. That’s what this blog has been about, primarily, before you got her, Jill.

    Unfortunately, there are other things more pressing at the moment and we are going to have to be a little patient. I don’t like it and neither do the rest of us ‘turlees’

  21. Here’s a link to a documentary on torture and it’s approval at the highest level of the cheneybush administration. Evidently, PBS has tried to suppress it. (from g. greenwald’s column today)

    “Last month, I interviewed Harper’s Scott Horton regarding a piece he had written on the efforts of several PBS officials, including Jay Rockefeller’s wife (the CEO of Washington’s PBS affiliate) to block broadcast of the documentary Torturing Democracy, which compellingly documents how virtually all of the torture and other illegalities and abuses of America’s interrogation programs were authorized and ordered at the highest levels of the Bush administration (of which waterboarding is but one small example).

    That documentary is now available to be viewed in its entirety online — here — and I can’t recommend it highly enough. Though it includes a few standard documentary tactics that I could do without (ominous music, grave-toned narration, black-and-white up-close photos of the villains), it is an extraordinarily well-documented account of America’s torture program over the last seven years and, most informatively, the role that top Bush officials played in those programs. Notably, most of the sources on which it relies are former U.S. military and Bush administration officials who waged courageous though ultimately unsuccessful battles to halt these programs.

    I’m particularly amazed that someone could be aware of this set of facts — could know that our highest government officials deliberately and knowingly authorized torture techniques that are war crimes under both U.S. law and international treaties to which we are a party — and still argue, as so many do, that it would be wrong to hold these political officials accountable for the laws they systematically violated. It’s easy to say how horrendous one finds torture to be. But those who simultaneously advocate that American political leaders should be immunized from the consequences of their criminality — that, in essence, we should refrain from enforcing these laws — are proving that those are empty words indeed.”

  22. Jill,
    I just finished watching the Torturing Democracy video that you linked to. It was an amazing, but sad video. It is vital that we, as a country, take steps to bring these war criminals to justice. I know that might be wishful thinking, but I do believe that our Nation has been seriously harmed by these men and women who authorized the torture. Our soldiers are in danger of having the same tactics used on them.

  23. Like I said – The cat was ‘ out of the bag ’ in April – specifically on April 3 with JT’s appearance on KO where he spoke about the Yoo memo and negated any suggestion that ‘Abu Ghraib’ was ‘hicks (low-lying West Virginia fruit) with sticks’…

    *** Check it out on youtube.

  24. The Obama’s just appeared on “60 minutes”; I love our shiny new President-elect and our beautiful First Family!

    President-elect Obama stated he will use executive orders to close Gitmo and stop torture. He will also keep his promise to begin to planning for withdrawal from Iraq.

  25. I just saw the news that Obama confirmed that he will close Gitmo and rid our country of torture and remove us from Iraq. Now we just need him to go after the people who authorized torture.

  26. My question is this: Wouldn’t a pardon issued by Bush for members of the administration who committed a crime be null and void as the pardon would be issued by a participant in the crime? That is, as is a crime according to U.S. and/or international statutes, and as the crime was initiated and/or perpetrated with Bush’s permission, how can Bush, a participant in the crime, pardon others who were also involved with the crime?

  27. The second sentence of my previous post should have read: “That is, as (pick one of Bush’s crimes) is a crime according to U.S. and/or international statutes,…”

  28. Patty C 1, November 13, 2008 at 6:50 pm

    He can’t give a blanket pardon to everybody for acting on his own illegal policies.

    By doing so, in effect, is an admission of guilt and for that I think he needs everybody’s ‘permission’.

    I say, let him go ahead and try! ;)

  29. Just got this update from the Center for Constitutional Rights,

    “With less than 60 days left in the Bush presidency, the chief prosecutor at Guantanamo Bay, Col. Lawrence Morris, has threatened publicly to bring additional charges against detainees before the military commissions.”

    There’s more info and a letter writing campaign at their website.

  30. Dear Prof. Turley:
    I very much enjoy your legal assesments on Keith Olbermans show, and agree that there should be a special prosecutor assigned to investigate the allegation that our country used torture to interrogate suspects, and if we did, to punish those responsible no matter how high in our government that would take us. It would send a loud message to the rest of the world that we are a nation that respects justice and the rule of law. As an aside, and I apologize if I missed your comment, does our premptive invasion in 2003 of a sovreign country, Iraq, that was not a threat to us, had not attacked us, that left thousands of Iraqi’s dead, constitute a war crime by the standards of the International Court of Justice ?
    Thanks,
    Dan

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