Congress, Constitutional Law, Courts, Criminal law, Media, Politics

Pardon Me? Obama Wrongly States That He Cannot Pardon Edward Snowdon

PresObama220px-edward_snowden-2There was an interesting recent interview of President Barack Obama by the German media giant Der Spiegel. In the interview, President Obama insisted that he could not pardon Edward Snowden as a matter of constitutional law. He is manifestly wrong. While the President may not want to pardon someone who deeply embarrassed him and his Administration, he is entirely capable of pardoning Snowden who is widely viewed as a whistleblower.

Here is the exchange in pertinent part:

ARD/SPIEGEL: Are you going to pardon Edward Snowden?

OBAMA: I can’t pardon somebody who hasn’t gone before a court and presented themselves, so that’s not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system.

At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I’ve tried to suggest — both to the American people, but also to the world — is that we do have to balance this issue of privacy and security. Those who pretend that there’s no balance that has to be struck and think we can take a 100-percent absolutist approach to protecting privacy don’t recognize that governments are going to be under an enormous burden to prevent the kinds of terrorist acts that not only harm individuals, but also can distort our society and our politics in very dangerous ways.

And those who think that security is the only thing and don’t care about privacy also have it wrong.
This is simply incorrect — as is known to anyone who remembers the fact that Gerald Ford pardoned Richard Nixon before he had been indicted.

And it appears that the President knows this. Because, as the Pardon Snowden campaign points out, Obama pardoned three Iranian Americans who had not yet stood trial. That happened this year. So for him to say it’s impossible to pardon someone who hasn’t gone before the court is simply, factually, historically wrong.

220px-augustus_hill_garland_-_brady-handyIf this were true, President Gerald Ford could never have pardoned Richard Nixon who was not charged with any crime. Nixon did not go “before a court and presented” himself. The case law is quite clear on this point. In 150 Ex Parte Garland (1865), the Supreme Court considered a law that requiring a loyalty oath be recited by any Federal court officer affirming that the officer had never served in the Confederate government. It effectively barred former confederates from such positions, including Augustus Hill Garland (right), an attorney and former Confederate Senator from Arkansas. Garland had received a pardon from President Andrew Johnson and the Court ruled 5-4 that the law was a bill of attainder and an ex post facto law. The Court ruled:

The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It 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. The power is not subject to legislative control.

Moreover, President Obama is no doubt fully aware that Snowden has no defense to make in court since the Espionage Act does not contain a whistleblower defense.

Clearly, the President can have objections on the merits to a pardon. There are certainly many people in Washington who despise Snowden for exposing the massive surveillance system. The Obama Administration was rocked by the disclosures and there are likely few advocates within the Administration for helping Snowden in any fashion. The decision not to pardon Snowden however will be dictated by the President and not the Constitution.

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Thus, if there is a constitutional version of the Pinocchio fact checker test, this would receive five Nixons for misreading the Constitution and its history in the statement “I can’t pardon somebody who hasn’t gone before a court and presented themselves.”

163 thoughts on “Pardon Me? Obama Wrongly States That He Cannot Pardon Edward Snowdon”

  1. Its wrong to frame Snowden as either a whistleblower or a traitor. They are not mutually excusive. He’s both. He should be publicly thanked for disclosing the abuse of the surveillance state before he is hanged for stealing and exposing security secrets.

  2. “I can’t pardon somebody who hasn’t gone before a court and presented themselves.”

    It seems as though the President, as an interviewee, was having difficulty with the issue of Snowden in that the former Harvard Law Review editor-in-chief’s use of a plural pronoun (themselves) in place of the singular (himself) as an object of the verb participle to refer back to something previously mentioned (somebody) is as disturbing as his bald-face lie (or, perhaps in mitigation, his lack of knowledge of the pardoning power). Neither is surprising. He should have read this week’s lesson from WordRake.

    1. Steve Groen – he was elected to the office of editor in chief from all the members (half selected by the faculty and half selected by the student body [Obama’s group]). My understanding is that it took them 8 hours to come to a decision.

  5. Yes, now we must wait for Trump to pardon Clinton and friends! And here’s Obama, a constitutional law professor.

    Obama also came out with another whopper. He’s going to speak up if Trump deviates from American values! OMG!!! Obama has normalized war crimes, financial crimes, environmental crimes and he’s going to speak out? Does he mean he’ll speak out if Trump doesn’t keep going with Obama’s crime syndicate?

    If he wants to speak out about real American values I’d be grateful if he’d spare a few seconds for the water protectors who are being dosed with water cannons in 20 degree weather.

    https://twitter.com/UR_Ninja?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor

    Maybe he could speak out for the 13 year old girl police shot in the face with rubber bullets?

    What a complete FRAUD.

    1. Does he mean he’ll speak out if Trump doesn’t keep going with Obama’s crime syndicate?

      Best line of the day. Exactly!

        1. It isn’t whether Trump is better than Hillary or whether or not he will show clemency where Obama and the aristocracy he pimps for clearly will not. These comparisons are utterly beside the point.

          Trump is a neoliberal just like HIllary (in fact, closer than many realize). He is not much better, or even different, than her economically or morally, but he is certainly not so horrible as to warrant all the pure insanity that overly guilt ridden Dems have been flailing about with. What a tribalistic eye opener.

          People didn’t reject Hillary because they thought her more or less evil than Trump. They rejected the “more than” or “less than” itself.

          They are beginning to reject the fear of fearing Trump, the alternative, because manipulation of that fear has enabled the elite of the Democrat party to shift the party ever more rightward toward globalism, monopolies gone wild, privatization, corruption brought about by unregulated greed, and cut throat domestic policy for thirty plus years until uncounted millions (invisible to the main stream media) have been cornered with no escape and they are starting to realize it.

      2. Harrison, I’ve no idea what Trump will do re: Snowden. Right now it’s on Obama’s plate and he’s kicking it down the field. I do hope Trump calls the dogs off Assange.

  9. The past nearly 8 years shows a penchant for not exactly following the law. As a former “Constitutional Law Professor”, his record of obeying the law is dismal. President Obama has been rebuked by the SCOTUS more than any modern day President. Overall, the administration has managed a record of 79-96, a win rate of just above 45 percent. There’s little difference between the first term’s 35-44 (just above 44 percent) and second term’s 44-52 (just below 46 percent).

    This is a record that a former “Constitutional Law Professor” can be proud of. Certainly will go down in history as part of his legacy.

  10. If Obama would pardon Hillary Clinton, he effectively certifies himself as a liar when, while campaigning on her behalf, he had lectured to the American people that she was innocent of all accusations. Would he take a bullet for her?

    1. Maybe, just maybe Obama will NOT pardon HRC.
      Yeah, I know. I am on the floor laughing at my comment.

  12. If you watch the documentary Citizen 4, Snowden tries to appear pure as the driven snow, but he gives himself away a couple of times. Snowden exposed far too much intelligence to be called a whistle blower. Traitor is the best word for him.

    As to our former Constitutional Law Lecturer, he only had to deal with the 2nd half of the Constitution. Pardons are in the 1st half.

  13. There is speculation that Putin might hand over Snowden to Trump. Since most people here think Trump is such a benevolent soul I don’t see what the problem is. Surely the pres elect will pardon him.

    1. Personally, I think Obama should pardon him because of the harm that probably will come to him if Putin hands him over to Trump.

  15. It’s really shameful for President Obama to pretend he is ignorant of the history and scope of the presidential pardon power. He won’t say: No I won’t pardon him. Instead he does the usual, that is, he pretends he can’t do it in an effort to fudge his real view. And they wonder why voters are disgusted.

  18. It´s so important to Show Obama´s whole spectrum, just here in Germany. His kissing Angela Merkel Shows him as a friendly, deeply empathical man. Obama´s lies are no theme in German! Now I am going to read this cases in German language. Thank you!
    Dr.A.G.

  19. This interview should have Clinton and her entourage a bit nervous. Unless I’m mistaken, none of them have been charged or put before a court.

  20. Considering the uncertain times ahead, now would be an ideal time to pardon whistleblowers.

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