There 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.
If 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.
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.”
It’s be great if Obama pardoned Don Siegelman.
https://washingtonspectator.org/the-case-for-a-presidential-pardon-for-don-siegelman/
“Note to Obama: leakers and whistleblowers will be essential in Trump era. It’s time to pardon the ones you’ve prosecuted.”
Tweet at Greenwal’s site by Peter Maass
THE SECOND COMING
BY WILLIAM BUTLER YEATS
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
Surely some revelation is at hand;
Surely the Second Coming is at hand.
The Second Coming! Hardly are those words out
When a vast image out of Spiritus Mundi
Troubles my sight: somewhere in sands of the desert
A shape with lion body and the head of a man,
A gaze blank and pitiless as the sun,
Is moving its slow thighs, while all about it
Reel shadows of the indignant desert birds.
The darkness drops again; but now I know
That twenty centuries of stony sleep
Were vexed to nightmare by a rocking cradle,
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?
Thanks, JT and others for your efforts on this blog and to everyone for the wide range of comments. Time for me to sign off. The coming times require far more from me than responding to blog postings. God help us all.
Obama could pardon Chelsea Manning as she’s been convicted. He’s had her tortured for years now.
https://petitions.whitehouse.gov/petition/commute-chelsea-mannings-sentence-time-served-1
He had her tortured for years now
This is one of the core reasons I see not a single ray of light as hope for the future. We have the Dems singing praises for this scoundrel while the right goes after Snowden for being part of a movement that got their man elected.
There is no one, no corner left, that can stand up to the powers that be and they in turn are probably just as affected by their own echo chamber – not to mention their gated communities in every possible sense of the term.
But let’s don’t protest a fascist at the theater. Entertainment’s too important for such trivial truths.
Steve Groen – you would be surprise just how trivial theatre can be some times. The actors used their ”bully pulpit” to make a statement and then categorized as a conversation. I told you actors were not that sharp. 🙂
Where did I say anything against the protests? Yes, I think the DNC and many Hillary bots would do well to exercise a little introspection instead of coming up with mentally unhinged excuses such as “It was Putin”, but that doesn’t mean I’m against freedom of speech. I just think it is constitutionally protected for everyone which obviously includes criminals from both sides of the duopoly.
The outrage from Democrats would be palpable were these theater goers Joe Biden and his wife 8 years ago, but then why would that matter, right? That’s gotta be different, somehow, no?
All this comparison stuff is ultimately useless; slug em, get slugged, slug em, get slugged, slug em, get slugged, slug em get, slugged, and so on. As endless as it is useless.
The Democratic party is moribund. It’s past help. What are we going to do now and who or what might help break the iron clad grip of the deep state?
And btw, it won’t be Sanders for me at least. The way he is now campaigning for a movement that is not part of the establishment after just pimping shamelessly for the very essence of the Wall Street and MIC establishment, Clinton, is just too much of a give-away as to what this shameless sheep herder really is for me to swallow again.
“And btw, it won’t be Sanders for me at least. The way he is now campaigning for a movement that is not part of the establishment after just pimping shamelessly for the very essence of the Wall Street and MIC establishment, Clinton, is just too much of a give-away as to what this shameless sheep herder really is for me to swallow again.”
Agree 100%. Bernie wasn’t in for the long haul. I can’t criticize him for that. I can’t support him for it either.
Perhaps I framed my comment as if I were criticizing you. I wasn’t.
Thanks, I should have paid more attention. 🙁
BB & Steve, I firmly disagree with both y’all re: Bernie. I think he is the real deal and not a sheep herder. Not sure what went on with the Clintons – maybe they threatened Jane or the grands – anything with them is possible. However, the fact remains that Bernie lit a fire which is still Bernin – indeed the Donald can thank him because none of us voted for HRC.
I find it very amusing that the DNC has trotted him out as some sort of ambassador for the party – he schooled us way too well to ever fall in line. And from the interview I saw with Charlie Rose all he’s doing is using the publicity platform to push for his original messages which DO not line up with the current Democrats.
https://www.youtube.com/watch?v=BAuibh1JBZQ
I give Bernie credit for keepin’ on keepin’ on and continuing the enthusiasm anti DNC and GOP alike.
Autumn, I re-registered as a Green in February, 2015, well before Bernie announced his candidacy. I’d been a Green until I drank the Hope and Change Kool-Aid. I was never really on the Bernie wagon because I was through with the Democrats. Now, it’s all about whether the neo-nationalist or the kinder, gentler used car salesmen will steal your money and overthrow foreign states.
Bernie won’t get it done in the Democratic Party because the Democrats have been nursed on big donor money. Note, too, that Bernie’s PAC accepts all denominations and I don’t mean just religious denominations. That’s not a glaring and persuasive contradiction of his platform to you?
Having to register with a particular political party brings shivers up my spine. I wouldn’t trust anyone with that information. We had some pols twenty five years ago suggest doing just that. They were lucky they weren’t grabbed by the seat of their pants and heave-ho’ed across the Columbia and into Oregon.
Today’s a different story, unfortunately.
Autumn – I found the Podesta email about having something on Bernie very telling. I think whatever it was was strong enough to keep him from going after Hillary’s emails and then campaigning for her later.
Brooklin Bridge – never forget that the Democratic Party is the party of slavery and torture. They are the party of Jim Crow. They fought against the Civil Rights Acts. And the 13th, 14th, and 15th Amendments. Republicans voted 100 per cent for those. Blacks started moving to the Democratic Party as an economic move under Roosevelt. However, Trump may bring more of them back.
Paul, I grant you that, and believe me, I have been thinking about it lately. Times change and so did the Republicans (and Democrats) and now perhaps they are both changing yet again. It goes without saying the Dems changed, at least twice since Lincoln. They are now diametrically opposite of what they were from the Great Depression through the nineteen fifties. What Jill says above. It is shameful beyond words.
Perhaps there are shoots of green coming up in the Republican party but it is too soon for me to be very hopeful. I think what is going on is more powerful than either party and certainly more so than any individual that wears one or the other banner.
Sorry Paul. I’m fully aware that you and many on this site from both sides of this mess are fine people. Too much glass in my own house to be pointing fingers, but sometimes I just get carried away.
Obama definitely should pardon Chelsea Manning along with Snowden.
Obama either has terrible grasp of the Constitution or he is an absolute liar and Im not just referring to this
Anonymouse – well, we know Obama was not selected to the Harvard Law Review by the faculty (re: grades, scholarship), but elected from the student body. I think he slept through Con Law I and II
Looking at most of the writing from the crowd here, I’d say to bad Obama can’t pardon stupid.
Demoncrats response to Trump: “I see your Bannon and raise you a Wall Street whore”
Snowden is in a terrible spot because Obama won’t pardon him and Trump wants him executed. Feel very sorry for him.
harrison – Snowden has no one to blame but himself.
Snowden has no one to blame but himself.
Snowden along with Assange has been in no small part responsible for Trump’s win in that many people stayed home who might otherwise have voted for Clinton due in part to the unconstitutional manner in which the Obama administration spies on its citizens and treats their private data. Indeed, this goes to the heart of Clinton’s fiasco where as Secretary of State she feels she can hide her data (even though it belongs to the public) whereas the ordinary citizen has everything right up to the movement of his or her eyeballs tracked and recorded when they indeed have a right to privacy.
This isn’t in defense of Snowden personally, this is in defense of whistle blowers in general, but particularly those who act out of concern for others which Snowden clearly did since he has said all along he accepts his fate even if as a human being, he would welcome a pardon. But the information he provided would never have come to light under normal channels and yet is information that belongs to every man, woman and child that is an American because it’s THEIR country, their constitution, and dammit, their data! If the President du jour is going to change the constitution, using secret papers with “Because the President says so” at their core along with a few obsequious lawyers just doesn’t cut it.
Obama speaks from hole in derrière when he claims nonsense to the contrary. But if you agree with him even for a different reason, I didn’t hear you complaining that such information was unusable in any ethical sense because of the way it was obtained when it worked on Trump’s behalf.
Brooklin Bridge – it was John Podesta that we have to thank for his emails. He was spearfished and when he asked IT about it they sent him a link to change his password. He, fool that he was, went back to the original email and used their link, giving everything up. Sucker!!!!
Yes, the tree of liberty needs periodic watering with the blood of patriots. Snowden is, undeniably, extremely patriotic.
https://theintercept.com/2016/11/18/obama-refuses-to-pardon-edward-snowden-trumps-new-cia-pick-wants-him-dead/ “President Obama indicated on Friday that he won’t pardon NSA whistleblower Edward Snowden, even as President-elect Donald Trump announced his pick to run the CIA: Kansas congressman Mike Pompeo, who has called for “the traitor Edward Snowden” to be executed.”
Democrats have unclean hands. They were not at all concerned with the Clinton Foundation, and the speech/bribes, and now they are worried about POTENTIAL conflicts? BeeEss! I sooo don’t wanna hear it now!
Squeeky Fromm
Girl Reporter
How disingenuous! He may pardon Hillary Clinton, and she has not been convicted of anything. Yet.
https://pbs.twimg.com/media/CxE5md6UcAIUyCQ.jpg
Squeeky Fromm
Girl Reporter
Squeeky – I am thinking that Obama will evolve enough to pardon Clinton. However, that doesn’t get her off state charges. Or new charges.
@PaulCS
Dead Wake came in today! Along with Tales from Ovid by Ted Hughes, and Blood Splatters Quickly by Edward D. Wood, Jr. My next few days are going to be sooo busy! But I can read when the kittens are sleeping. Thank goodness Penelope closed the office down this week. Except for emergencies, or if an errant ambulance drives by. 🙂
Squeeky Fromm
Girl Reporter
Let’s see if he has the same interpretation of the Constitution with regard to the Clintons.
Dang! You read my mind!
PS: Do you have a throwaway Twitter account, or some throwaway email address to mail potential stories or tips to? I usually just tweet Turley’s account thru Penelope’s, but I imagine he is too busy to stay on top of that.
Thanks!
Squeeky Fromm
Girl Reporter
You can place suggestions among the comments.
OK! Thanks! Here is a possible story:
Squeeky Fromm
Girl Reporter
Squeek, every time a school does this it just means Milo gets more attention. You can bet those sixth formers are all YouTubing him.
More important that consideration of a pardon for Snowden, there is one egregrious case in which Obama of all presidents should be taking immediate action to pardon: Abraham W. Bolden, the first Black man in the Secret Service assigned to protect the President. Prosident John F. Kennedy personally appointed him to the presidential detail at a time when racism was running rampant in the U.S. and certainly in the Secret Service. (It still is to a considerable extent, though not quite at the level of the 1960s.)
Bolden’s “crime” was that he attempted to report to the Warren Commission that the members of the Secret Service were notorious boozers on the job. (In fact, years later, investigations revealed that the members of the President’s detail on November 21 and November 22, 1963 were out drinking into the early morning hours before the motorcade trip to Elm Street is which JFK was assassinated. Yes, even, Clint Hill was out drinking, though he, at least showed some belated response to the shots, while the other Secret Service agents stood frozen as the gunfire continued until the fatal shot to JFK’s right front temple.)
When the Secret Service learned that Bolden was going to blow the whistle on the Secret Service, Bolden soon found himself being charged with bribery on the testimony of two criminals, who themselves were facing seriou jail time. The trial was a sham, as was the appeal. Bolden should be unquestionably pardoned. Yet, no president has agreed to even review his case in over 40 years.
You would think that Obama–as a man with some Black heritage–would have at least the decency to at least look into Bolden’s case. But no. Obama’s a fraud, a liar, and has done absolutely NOTHING for Black people. Obama still has some time to do something right for the very first time in his life, but I expect him to be exactly what he has always been. A BIG ZERO.
For those interested in reading about Bolden’s case, he’s one link:
http://www.huffingtonpost.com/thom-hartmann/after-45-years-a-civil-ri_b_213834.html
Occam’s razor suggests he was in prison because he was guilty of a crime.
The Secret Service wasn’t ‘frozen’ and there was nothing they could have done at the time to save Kennedy.
Still after Obama, hey Turley. The fact of the matter is that Obama is exiting a situation he wants to avoid using an oft used device called legal bulltrump. Trump used legal bulltrump regarding his taxes and a thousand other things. Politicians use legal bulltrump all the time. Nobody uses legal bulltrump more than lawyers, except the world’s consummate liar and bulltrumper himself Donald Trump.
Turley, you expose your bias continually while giving the greatest American shame and disaster since Bush a free ride. Your hypocrisy knows no bounds. Let’s have some insight into the great bulltrumper himself. Or do you have the minerals? Perhaps I will match you bulltrump vrs bulltrump.
Mr. Turley is indeed biased against lies, and biased toward the truth and the US Constitution, the greatest Constitution ever written.
issac – you are still really grieving, aren’t you?
Prof. Turley has not accurately characterized Obama’s response to pardoning Snowden. Obama was not merely wrong. “Wrong” indicates that Obama reviewed the facts and circumstances and made an incorrect conclusion by virtue of his limited knowledge. While it’s true that Obama is ignorant generally speaking, he is not stupid when it comes to Constitutional law.
When you speak to anyone over 35 years of age with even a modest education and a very light understanding of history and current events, if you were to ask them about the most famous or infamous Presidential pardon that comes to mind, one case would likely come to come: Richard Nixon (the example that Prof. Turley mentions).
Now, would a reasonable person say that Obama didn’t know that example or that he didn’t think of it? No, such a notion is unreasonable. Therefore, since Obama was certainly aware of this historic example of a presidential pardon in which Nixon was never tried in court, there is only ONE conclusion that any reasonable person can make: Obama LIED. So let’s not sugarcoat reality. We have Hillary Clinton, a serial liar. And we’ve had Obama for eight years; also a serial liar. A deliberate falsehood is a lie.
In case anyone has not fully grasped my point, here is the great impressionist Frank Caliendo doing his take on Al Pacino:
If I’ve learned anything about this President over the last 8 years, it’s not to underestimate his ability to mean what he says and then go against conventional wisdom in his actions. He has had his own DOJ , a veto-enabling Congress and compliant Press all protecting the King. He will not leave office without solidifying his own security by pardoning all the pieces on the board.
Olly-
I’m not so sure that he will pardon Clinton and/or her entourage. The politically smart thing to do is to force Trump’s administration to decide whether to prosecute Clinton and let him take the heat for whatever decision is made. Given Trump’s statements during the debates, and given Comey’s decision to not prosecute, any prosecution will have a strong whiff of political revenge attached to it. Obtaining a conviction under those circumstances will be difficult, likely impossible, even if they prove the elements of a crime beyond a reasonable doubt. With no pardon of Clinton, Trump faces a difficult situation. If his administration prosecutes Clinton, there will be a firestorm. And probably no conviction. If he does not prosecute Clinton, there will be a different kind of firestorm. If Obama issues one or more pardons on this matter, Obama and the Democrats take the heat. The smart move is to not issue any pardons in this matter. Whether Obama goes that route remains to be seen.
Don de Drain – given the extended statement Comey gave before he let Hillary off the hook, many of us were expecting him to end his statement with “Today we have indicted Hillary Rodham Clinton for …” However, just as Chief Justice Roberts was able to find a tax, where there was none, to keep Obamacare alive, Comey found intent where there wasn’t any to keep Hillary out of jail.
Some Constitutional Law expert he turned out to be.
Obama seemed to be expert enough to know how to exploit the weaknesses of our system of government. I believe him to be the antithesis of what the framers envisioned the character of the Executive should be. That being said, ultimately our republic has withstood the barrage and one aspect of his legacy may be the rise of U.S. civics literacy.
If a 3rd party doesn’t rise out of the ashes of this election to displace either or both of the two major parties then nothing will. Should Trump establish his legacy as one that actually honors the oath of office and governs for all the people equally, then he could blow up the political establishment by leaving the GOP and declaring his alignment with a 3rd party or by the formation of a new party. Now THAT would be must-see TV.
Olly re: “If a 3rd party doesn’t rise out of the ashes of this election to displace either or both of the two major parties then nothing will.” I think that’s what many of us are hoping for. This election has been so draining – some would say traumatic – there is an opportunity finally to create a new party.
Autumn, Your favorite, Tulsi Gabbard, is meeting w/ Trump today.
Nick, thanks for the heads up! I’d like to be a fly on that wall! =) Still hoping she will detach herself from the Demoncrats and run as an Independent in 2020. I think the country is ready to get off the R & D trains.
Autumn, Trump is close to an independent. Few realize General Flynn is a Demoncrat. He had the temerity to speak truth to power when he was working for Obama. He was the lone person who told Obama ISIS was a serious threat and not the Jayvee. I agree, Americans are fed up w/ the Rep and Dem duopoly.
Good enough for government work.