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. Dear Professor Turley-

    I read this evening that the House Republicans who brought suit against Obama to challenge his actions under the ACA, and who you successfully represented at trial, have asked the Court of Appeals to delay ruling on the appeal. Does this have anything to do with the fact that Donald Trump will shortly be sworn in as President? What, you mean that those “principled” House Republicans don’t want to disrupt the insurance market by winning the ACA litigation on appeal now that a Republican is going to be in the White House? They don’t want to limit the power of the President now that Trump is going to be the President? You mean that your clients are not really principled after all, that they just wanted to use the lawsuit to attack Obama politically? I”m shocked, Professor, absolutely shocked!

    Sincerely,

    Oliver Clozoff

  2. As Trump the thug takes his cues from Putin and Erdogan, starting with the press, Turley and his poodles nit pick legal speak and Obama. Trump is furious that America is not embracing him. He is losing it and he hasn’t even made it to Washington yet. I hear he is going to appoint Jim Inhofe to a high level post on the environment.

    1. issac – get over it, buttercup. I am sure you would be far happier if Goldman Sachs gave him the list to appoint from.

  3. The rule of law in the US, which had been on life-support for decades, died when Obama said “we want to look forward, not back”. All that is left is the whims of the powerful.

  4. Maybe it is just Chelsea Manning who is bent and not Snowden. He looks bent though.
    Cheers big ears.

  5. Tulsi and Trump met earlier today – allegedly to discuss UN ambassadorship among other topics. I hope she does not accept that pointless position. The UN is a toothless, moribund institution. We need her votes in the House IMO

  6. I think Snowden was O’k until he went to China and the Russians. The NSA is collecting all Of our emails and phone calls. Even someone like myself wants to know what kind of country are we living in? Trumps election shows us that people are ready to think outside the box. A lot of Democrats wanted Bernie. A lot of Americans want a change from the establishment politicians in both major party’s. You’d have to be blind not to see this.

  7. Let’s hope that the former “Professor of Constitutional Law,” continues in this error in regard to Hillary and Bill Clinton and their criminal behavior. Although, somehow I doubt, based on his track record, that he would see any inconsistency in doing so.

    1. SierraRose – he was a Lecturer, not a Professor. Basically, he was adjunct faculty. He got paid by the class. It was not a full-time position.

      1. http://www.law.uchicago.edu/media

        Media Inquiries

        The University of Chicago Law School handles media requests through the University of Chicago News Office. The Law School is happy to work with the media to provide access to our faculty members, who are experts on myriad subjects, or to provide comment on news stories where appropriate. For all media inquiries, please contact the News Office at (773) 702-8360 or news@uchicago.edu.

        Statement Regarding Barack Obama

        The Law School has received many media requests about Barack Obama, especially about his status as “Senior Lecturer.”

        From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track. The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School’s Senior Lecturers has high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.

        1. 1. During the time he was on the faculty, he published no scholarly papers. Not one in 12 years.

          2. He apparently did not attend faculty meetings or serve on faculty committees (see Richard Epstein’s recollections on this point).

          3. “Senior Lecturer” was in other cases a title given to quondam faculty who’d gone on to other endeavours (e.g. a position on the bench, like Richard Posner). The other Senior Lecturers were not Obama’s peers, but people with peculiar distinctions in the profession.

          4. While we’re at it, was he hired according to the usual procedures at Chicago?

  8. Being a trans woman Chelsea Manning is very vulnerable. if Obama has any decency he would at least commute her sentence.

        1. Who are we to condemn his choice of personas? If he wants to be Ernest T. Bass, then we should simply do all we can to support him! We should start a GoFundMe for him to buy some bricks to throw at windows and things.

          C’mon, don’t be such a hater!

          Squeeky Fromm
          Girl Reporter

  9. http://www.commondreams.org/news/2016/11/20/chelsea-manning-supporters-launch-last-ditch-call-clemency
    Chelsea Manning Supporters Launch Last-Ditch Call for Clemency
    Published on
    Sunday, November 20, 2016
    by
    Common Dreams
    Chelsea Manning Supporters Launch Last-Ditch Call for Clemency

    Friend and attorney Chase Strangio tells Obama, ‘Her life is in your hands.’
    by
    Lauren McCauley, staff writer
    22 Comments
    “If you do not act to free her now, she may never be free to live the truth that she for so long was forced to repress.” (Photo: Reuters)

    “If you do not act to free her now, she may never be free to live the truth that she for so long was forced to repress.” (Photo: Reuters)

    With mere weeks left under an Obama presidency, advocates have launched what they describe as a last ditch effort to save national security whistleblower Chelsea Manning before Donald Trump and his team of pro-torture, anti-LGBTQ war hawks ascend to power.

    With a protest outside the White House on Saturday and a vigil outside Fort Leavenworth prison, where Manning is being held, on Sunday, advocates are amplifying their call for a presidential pardon for Manning.

    Specifically, supporters are asking President Barack Obama to commute Manning’s sentence to time served, pointing to the fact that Manning “has already served more time in prison than any individual in United States history who disclosed information in the public interest,” though “[h]er disclosures harmed no one.”

    Manning, who is serving a 35-year sentence, formally submitted a petition earlier this week asking for a reduced sentence.

    “Chelsea Manning has been incarcerated since May 2010, including in unlawful, unusually harsh solitary confinement for 11 months before her trial,” reads a new White House petition.

    The petition draws attention to the fact that, as Obama himself has recognized, that “prisoners who face solitary confinement are more likely to commit suicide.” And as a transgender woman in a men’s facility “facing ongoing mistreatment,” Manning is highly at risk.

    In an appeal for clemency, American Civil Liberties Union (ACLU) staff attorney Chase Strangio, a friend of Manning, published an open letter to Obama.

    Noting Manning’s repeated suicide attempts and ongoing mistreatment, on top of the “pain of serving in the Army for years under both Don’t Ask, Don’t Tell and the ban on open transgender service, Strangio writes: “If you do not act to free her now, she may never be free to live the truth that she for so long was forced to repress.”

    “This request comes at the peak of Chelsea’s escalating trauma and despair and on the eve of a new Administration’s rise to power,” the letter continues. “Her life is in your hands.”

    1. If Obama doesn’t pardon both Manning and Snowden and drop the fixation with Assange, it will go badly for him in history. He imagines he can change that by simply controlling how history is written, but he is wrong. There may not be many Jonathan Turleys in this world, but there are enough.

      For me, each and every one of these whistle blowers is an amazing individual but Manning is perhaps the most heart breaking because she is the most vulnerable and the one who least asked for the whole thing.

      We praise our Democracy as something sacrosanct in this country, yet it comes directly and intrinsically from treachery to the Crown far worse than anything any of these whistleblowers have done. Their intention has been to right wrongs inside the system, not incite the whole population to break away from it.

      I doubt Obama will pardon any of them, but then what do I know. I doubted the powers that be would allow Trump to be our next president when they wanted a dynasty actively engaged in perpetuating the takeover of Democracy by global industry, finance, and the MIC. And instead they got a man actively engaged in perpetuating the takeover of Democracy by global industry, finance and hopefully, NOT the MIC, but we’ll see.

      1. Trump is giving off contradictory messages as his wanting to reopen the 9/11 investigation when an honest investigation would find Israel and many neocons with blood on their hands.

        Trump statement: “First of all, the original 9/11 investigation is a total mess and has to be reopened. How do two planes take out three buildings in the same day? I never got my head around the fact that nothing is mentioned about the destruction of Building 7 in the 585 page document,” he explained, talking about
        World Trade Center 7 which also collapsed – inexplicably – during the September 11 attacks.

        1. WTC 7 was hit by many pieces of WTC 1 when it collapsed. These caused the diesel fuel illegally stored in WTC 7 to catch fire. The fires could not be fought as the collapse of WTC 1 destroyed the water mains.

          1. David, seeing is believing, and after seeing WTC 7’s collapse there aren’t many who believe it wasn’t an intentional demolition. I surely don’t.

            1. Larry Silverstein brought down WTC 7 with planned demolition.
              3 NYC SKYSCRAPERS WERE DESTROYED BY CONTROLLED DEMOLITION ON 9/11
              “SCIENTISTS, ARCHITECTS, & ENGINEERS now affirm that the 9/11 destruction of the World Trade Center buildings was an inside job. The leading scientist of Scholars For 9/11 Truth, Dr Steven Jones, has proven that controlled demolition devices were placed within the WTC Twin Towers – and this is what brought the buildings down not the airplanes. According to Fox News journalist Jeffrey Scott Shapiro, Larry Silverstein tried on the afternoon of 9/11 to get approval to demolish WTC 7. Shortly before the building collapsed, several NYPD officers and Con-Edison workers told me that Larry Silverstein, the property developer of One World Financial Center was on the phone with his insurance carrier to see if they would authorize the controlled demolition of the building ? since its foundation was already unstable and expected to fall.”
              (editor: this was a lie WTC 7 was not unstable and not expected to fall)
              The National Institute of Standards and Technology lied. WTC 7 did not come down due to office fires
              Video of Silverstein admitting demolition of WTC 7 –> Larry ‘Pull it’ Silverstein – Silverstein lied. The fire dept. did not authorize this demolition.
              https://youtu.be/p34XrI2Fm6I

            2. 9/11 WAS AN INSIDE JOB!
              2712 Architects and Engineers are telling us the U.S. Government is Lying about 9/11.
              The U.S. Government is complicit in the murders of 9/11.
              3 NYC SKYSCRAPERS WERE DESTROYED BY CONTROLLED DEMOLITION ON 9/11
              Our enemy does not want you to know about the 3rd building, WTC 7. It was not hit by a plane
              This issue exposes the wide and deep corruption of the governments, courts and media
              http://www.ae911truth.org/
              https://youtu.be/kQ2iVymP7hA

            3. Statements attributed to Trump;
              Trump: “I Will Be Reopening The 9/11 Investigation”
              Trump: “First of all, the original 9/11 investigation is a total mess and has to be reopened. How do two planes take out three buildings in the same day? I never got my head around the fact that nothing is mentioned about the destruction of Building 7 in the 585 page document,” he explained, talking about World Trade Center 7 which also collapsed – inexplicably – during the September 11 attacks.

  10. RAY CHARLES LYRICS
    “Chattanooga Choo Choo”
    (originally by Glenn Miller)

    Hey there, pal, whatcha say?
    Step aside partner, it’s my day
    Bend an ear and listen to my version
    (Of a really solid, Tennessee excursion)
    Pardon me boys, is that the Chattanooga Choo Choo?
    (Yes Yes) Track 29!
    Boy you can give me a shine
    (Can you afford to board, the Chattanooga Choo Choo?)
    I’ve got my fare
    And just a trifle to spare
    You leave the Pennsylvania station ’bout a quarter to four
    Read a magazine and then you’re in Baltimore
    Dinner in the diner, nothing could be finer
    (then to have your ham and eggs in Carolina)
    When you hear the whistle blowing eight to the bar
    Then you know that Tennessee is not very far
    Shuffle all the coal in
    Gotta keep it rollin’
    (Whoo Whoo Chattanooga there you are)
    There’s gonna be, a certain party at the station
    Satin and Lace
    I used to call funny face
    She’s gonna cry
    Until I tell her that I’ll never roam
    (So Chattanooga Choo Choo)
    Won’t you choo choo me home.
    Get aboard…
    All aboard…
    Chattanooga choo choo
    Wont you choo choo me home

  11. “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.”

    Oh, the irony, coming upon the heels of the Clinton email/server scandal, which she backed up to the Cloud.

    And Obama making false statements like this is so commonplace we’ve become jaded. How lovely that he could have pardoned people this very year who had not yet presented themselves in court, and then blithely claimed he could not pardon Snowden.

    Does this mean he will not consider giving Hillary Clinton a preemptive pardon? Or is he not even pretending at consistency at this point?

    Isaac: “Isn’t that free speech, what Snowden did?” The mishandling of classified information is not free speech. There are laws governing classified information, obviously unless you are Hillary Clinton. Otherwise we would all be entitled to the nuclear codes. I do view most of what Snowden did as whistleblowing, and I could see how he believed that it would get buried in the usual channels. My concern is if the information he released put any of our operatives in jeopardy. It’s a fine line between whistleblowing and sabotage. I’m not clear if he crossed that line, because I do not know the entirety of the case.

  12. Even when I first read Obama’s “can’t do anything about it cause my hands are tied” excuse I knew it was a bogus political dodge, and I didn’t even know he had done that very thing for the Iranian defendants this year.

    He should be held to his words, some next interviewer should hold him to the fire and say “Mr. President, I know that you wanted to pardon Edward Snowden but were under the belief that you couldn’t until he came before a court, however I am here to give you the good news — recent legal scholars have proven conclusively that it is not necessary for him to do that, and that you can pardon him preemptively! Now that you have decided to actually pardon him, when are planning on doing that?”

  13. Only in the context that the Constitution gives hiim the right to say yes or no. However the presentation destroyed the last tenth of is now vanished leg of see. Copy catting Hillary Speak on a one of her average days left him at zero. i can think of nine trillion other reasons as well. I can’t think of anything he did that came close to honoring faithfully his oath of office.

    No legacy for the dictatorship of ObeyMe.

    All he had to say was my decision was No. Perfectly legal and for perhaps the first time he did anything that qualified as such. Perhaps it was the shock of screwing up his perfect record of failure. And before iyou reverse racists shout racists remember you can only half way where Obama is concerned.

  14. Isn’t that free speech, what Snowden did? The bigger question is will the next President pardon Trump? An even bigger question is why aren’t Bush, Cheney, and Rumsfeld in jail? Lots of questions out there. The answers seem to vary depending on the level of hypocrisy. Right now it’s full of floaters, or floating pieces of trump.

    1. issac – Snowden doesn’t seem to think it was free speech, what makes you think it is? I know that Canada has no secrets worth keeping, but just pretend they are national secrets he released.

      1. The Canadian is such a wordsmith, just like W. Have you folks picked up on his clever Trump=feces game. He is just so creative, just like W and Trump as well.

      2. And “free” healthcare and “free” college. It all comes off the deciduous money tree.

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