Is President Bush Preparing a Preemptive Pardon?

Speculation is growing that President Bush may pardon those officials responsible for the unlawful programs under his Administration. It will be the subject (and possibly the Sunstein controversy) of my discussion on Countdown tonight.

This far, Bush has been openly hostile to pardons, creating one of the worst records in history. With the exception of Scooter Libby (who received a pardon without applying and without spending a day in prison), Bush has allowed thousands of pardon petitions to languish in his office.

He has granted only 157 pardons in comparison to Ronald Reagan’s 409 in eight years. Clinton, who abused this power, granted 459 but half came in his final year.

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41 thoughts on “Is President Bush Preparing a Preemptive Pardon?”

  1. > Unfortunately, Iā€™m going to have to go with McCain because more Iraqis died under Clinton than under Bush

    Are you serious? Excellent logic here….more Iraqis died under Clinton than under Bush, therefore I will vote for McCain and not Obama.

    Yes, I’m sure God will understand and accept your explanation…. Just donate some money for the orphans and happily go about your life.

  2. I’m really torn about whether to hate or love Bush Jr. On the one hand, he is responsible for the deaths of thousands of Iraqis but on the other hand he has done more to end the reign of the American Empire than anybody including Reagan.

    I’m also torn on Obama vs. McCain for the same reason as above. On the one hand, Obama like Clinton could turn the Republican deficit into a surplus and perhaps get a settlement for Palestine and Israel. On the other hand eight more years of Bush – I mean McCain and a war with Iran which is four times larger and has more than double the population of Iraq and has many more sophisticated weapons could very well be what bankrupts the US, demoralizes what is left of the armed forces and leaves them unable to dominate the world.

    Unfortunately, I’m going to have to go with McCain because more Iraqis died under Clinton than under Bush. Clinton deprived Iraq of food and medicine with his sanctions and over 500 000 children died (see WHO, IRC) and when Albright was asked if it was justified in killing half a million children, she said “yes”.

    For all of us non-American citizens, go to McCain’s website and donate money. When asked for a Zip Code, just pick almost any random five digit number – I went with 85050 (Phoenix, Arizona) but I’m sure 90210 would work just as well.

    I feel sorry for all the Iranians and US soldiers who will die under McCain and I pray that God will take my explanation on Judgment Day, that I was doing it for the good of the world in the long term and I would encourage all those that donate to also donate to the International Red Crescent/Red Cross after the war to help the orphaned children and maybe some money for all the disabled soldiers that make it back alive. God Bless and please forgive me.

  3. I think most people here are underestimating Bush. He can and will pardon himself and his cronies.

    Who cares if its a tacit admission? We all KNOW he did it, yet there he sits, King Dubya, untouchable.

    The problem is leaders in congress that are supposed to shut him down are accomplices. Members of the Senate Intelligence committee SAT IN on torture meetings and quietly let them slide by, so they are complicit.

    Why would hypocrites like Pelosi bring actual impeachment proceedings when her role in the coverup would come to light?

    Quit being naive. Our Republic is now a shadow dictatorship and America’s Apathy + Corruption in Congress = no end in sight…

  4. I have a question for you Professor Turley.

    If George Bush is the subject of impeachment hearings, even if no vote is conducted, does this impede his ability to pardon?

    I am not a Constitutional scholar, so I defer to your interpretation of this, but this clause of Article 2, Section 2:

    “…(H)e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

    I look at that and think that if the president is in the midst of impeachment that he is unable to pardon anyone. So if Nancy Pelosi allowed the Judiciary Committee to hold hearings, but does not want it to come to a vote…could it be to place a marker to prevent these potential pre-emptive pardons?

    Or does this single exception for pardons “except in Cases of Impeachment” refer to the potential recipient and not the
    president?

    And, can you really pre-emptively pardon someone for a crime they have not been charged with by any legal authority? What would the pardon say the legal sins they are being absolved for? Or does it give them a cosmic “get out of jail card free” that they can redeem for anything should future prosecutors decide to target them for investigation or grand jury testimony?

  5. puzzling
    1, July 24, 2008 at 8:06 am

    If so, he will claim not that this action is any tacit admission of guilt by those pardoned, but that he is protecting the patriotic spirit of the nation that enabled these citizens to answer a call to duty that saved the country in a time of crisis. He will claim that this action is simply to protect good citizens from political retribution by his successors, and by doing so will state that he is enshrining the moral correctness of those who served national security interests.

    Its like you’re peering into the future. Thats no doubt right in line with the reasoning they will purport for their evading justice.

    Me thinks sir, thou art a prophet.

  6. puzzling,

    I think that is a good analysis of the situation. We see these ideas ramping up in the talking points now. This rational was utilized heavily in the telecoms case where it was pointed out that these poor community service minded companies who made billions of dollars breaking the law where just doing it “for team America”. Right!

    Jill

  7. Thanka to all of you for your comments to my question.

    I do think its possible that Bush will issue thousands of pardons. If so, he will claim not that this action is any tacit admission of guilt by those pardoned, but that he is protecting the patriotic spirit of the nation that enabled these citizens to answer a call to duty that saved the country in a time of crisis. He will claim that this action is simply to protect good citizens from political retribution by his successors, and by doing so will state that he is enshrining the moral correctness of those who served national security interests.

    I think this position will make the pardons less about the crimes many correctly believe were committed, and more about a President who used his authority to protect the calling of patriotism and duty.

    I can see such a message playing successfully in the media, and I think it’s much less risky to Bush politically than to issue a few dozen targeted pardons to those closest to him. In other words, the outrage over pardoning a few will be lost by the sheer scale of his action. I can see the Bush pardons reaching so broadly that some individuals pardoned may have committed no crimes at all. By aggregating the potentially guilty and largely innocent into one large class, he will reframe the discussion about the meaning of this action.

    Just a theory, and I hope I’m wrong on it.

  8. One other chasm, one that may be too big for Bush to cross, is the “official”, and automatic admission of guilt, should Mr Bush seek the escape of a pardon.

    In Burdick v. United States the US Supreme Court ruled that the acceptence of a pardon was mandatory to validating it, and doing so automaticlly constituted an admission of guilt.

    On the other hand Bill Clinton had to go and pardon a dead guy, which opened the door for that, LOGICAL assumption, to be challenged.

    Nonetheless, in all minds but those who are capable of straining at a gnat, while swallowing a camel, its going to be evident that Bush pardoning himself, is an admission of his guilt.

  9. And in my, limited understanding, to me its an affront to the concept of the balance of power, if one concludes he does.

    After all, if the President can effectively do whatever he wants, then merely pardon himself, then the Executive Branch is suddenly elevated above any co-equal status with the other two branches.

    The Executive effectively becomes omnipotent, being beyond any legislative oversight, or judicial decree. If the President can pardon himself of whatever crimes he so chooses, with no guidelines or restrictions, then the balance of power in our country has ended and its now Executive rule.

  10. puzzling
    1, July 23, 2008 at 10:38 pm
    Question:

    If the power of the President is to pardon individuals for crimes against the United States, is there still a possibility that Bush or members of his administration could be prosecuted for lesser crimes at the state level? Is there precedent for this?

    In my opinion, Mr Bush may not necessarily have as much power, at least politically, to pardon himself as easily as some might think. Now Professor Turely, or one of the Constitutional scholars in here would be better able to answer this in more detail, but it seems to me that given the specific charges possibly facing mr Bush, and the nature of the offenses, that pardon may not be possible on some of these offenses, specifically, for himself, at least if he follows the regulations in the Federal US Code. While admittedly someone came along and tacked on a really weird disclaimer to the regulations, saying they are only “guidelines” and do not necessarily restrict the power of the president to pardon, it would be seem odd with Bush being as weak as he is, for him to get away with it. Of course that never stopped him before.

    First and foremost, a requirement I find amusing, as considered in the context of Bush “pardoning himself”, is found in Title 28, Section 1.1 of the Federal US Code that requires the person seeking the pardon, to execute a petition to the President of the United States, asking for the Pardon.

    That means that Bush, would have to write a letter to himself, asking himself to pardon himself.

    šŸ˜

    And not only is that a really weird image, it is also unseemly, in that the wording to me at least, in the federal code, seems to suggest that the power of clemency or pardon was never anticipated to be endowed in the executive to pardon himself.

    But, Constitutional scholars will point to Article II, Section II of the Constitution as saying he does have the power, although I just don’t see it. The concept of a president pardoning himself is more in keeping with the image of despots and dictators and not democratic Presidents. Not to mention that no US President in US History has ever done it, not even Nixon, but ok. Lets say he can.

    Section 1.4 of Title 28 says clearly;

    Petitions for executive clemency shall relate only to violations of laws of the United States.

    So it seems if Bush broke “International Law”, then he would not by definition, be eligible for pardon.

    But really I don’t think he was ever intended to pardon himself. The characteristic I see in the US Code that seems to indicate that the idea of a president actually being caught in crimes and pardoning himself was never the intent of Article 2, Section 2, is the notion in Sec 1.1 of Title 28 that requires the petitioner to “Petition the President”, and Section 1.7 and 1.8, (notification), particularly 1.8, which requires should the petition be denied, then the President must notify the Attorney General, who in turn, must notify the President.

    šŸ˜

    Seems kinda odd to me, that the authors intended the President to play a game of ring around the rosy with the Attorney General like that. Its more likely to me at least, that their intention was not for the President to be using, or should I say, misusing, his Executive pardon to pardon himself. Otherwise it seems they’d have included wording that would adapt more accordingly, and exemptions for requirements like notification, and or petition.

    But most Constititional scholars and experts in the field certainly seem to disagree with me, and seem to think he has the right to do it.

    I personally just don’t see it though.

  11. Strider333,
    You are right that George W. will do anything and everything to cover his backside. That will include, in my opinion, pardons of his entire cabal. And Scooter and the Rovester. And worst of all, I would expect a pre-emptive pardon of George W. himself. I hope I am wrong.

  12. He’ll pardon anyone that will keep him out of jail. Libby knew ahead of time to take the fall and he’d be okay.

  13. Question:

    If the power of the President is to pardon individuals for crimes against the United States, is there still a possibility that Bush or members of his administration could be prosecuted for lesser crimes at the state level? Is there precedent for this?

    In my view the assertions and assumption of authority by this administration have been broad, novel and unprecedented on many levels. Is there reason to believe that Bush would be particularly selective about pardons, and not issue thousands of pardons to cover those in many roles (executive, corporate, and foreign) who assisted the administration in their pursuits in various capacities?

    If pardons are done on a massive scale under the guise of protecting and enshrining the spirit of “good samaritans” or “good citizens” who Bush claims assisted the nation in a time of existential crisis, wouldn’t this sweeping action serve to deflect political damage in the media? In other words, couldn’t a broad, novel application of pardons reframe the debate?

  14. Jill,
    You are right. I would also suggest that since 2001, we have come very close to a dictatorship. As close as I want to ever get to one.

  15. Rocker,

    My only disagreement is that cheneybush wouldn’t say it was wrong if the tin-pot dictator had oil and was “cooperative”!

  16. If by some unforeseen miracle Obama is elected in 2008 it is guaranteed he won’t change FISA, cut taxes, abandon a vital interest named Iraq, or harass former Bush administrators over allegations of wrong doing.

    Anybody that belives he will is just plain naive about politics.

  17. The very idea of a preemptive pardon is so far from what should be reality that everyone should stop and take notice. This kind of action, if done by some tin-pot dictator, would be immediately condemned by this administration. Maybe we shouldn’t be blaming Bush as much as the system that allows such ridiculous power. It is plain for anyone to see: the United States is a dictatorship.

  18. Claude,
    I can only hope that one of the Bush war crimnal crownd will be overseas at the wrong time and they snatched up and rendered to a country that is serious about the rule of law.

  19. Dear Prof. Turley,

    I was impressed and heartened by what you said on Keith Olbermann’s Countdown. At the very least, perhaps a large number of those criminals will largely be confined to the borders of this country. Universal jurisdiction may come in very handy.

    Be well,
    Claude Horvath

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