There 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.
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
FFLEO, Welcome Aboard!
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.
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.
Indeed, Patty C, even Turleys have trouble getting Turley Zinfandel.
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.
Indeed, hope strings eternal, Patty C.
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.
Bob:
The fact that anyone looks up my academic work is enough to send me into a spasm of giggles.
JT
rafflaw,
When I googled up Turley’s law review, I found this on the first page of hits:
http://jonathanturley.org/2008/07/31/speaker-pelosi-declares-that-there-is-no-evidence-of-any-crime-by-president-bush/#comment-19315
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
Bob,
I like your state charges theory. Has Prof. Turley expressed any opinion on this approach?
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.
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.
How to proceed with prosecuting those who perpetrated crimes against the Constitution? I’m for it. How can an airhead like me help?
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! 😉
Bob,
This would still leave them open to state charges as you mentioned before, wouldn’t it?
“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.
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”
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.