You Cannot Pardon a Crime You Authorized

[davidswanson]

Statement from the Steering Committee for the Prosecution for War Crimes of President Bush and His Subordinates

Never before has a president pardoned himself or his subordinates for crimes he authorized. The closest thing to this in U.S. history thus far has been Bush's commutation of Scooter Libby's sentence. Bush is widely expected to follow that commutation with a pardon. Not only did Libby work for the White House, but he was convicted of obstruction of justice in an investigation that was headed to the president. Evidence introduced in the trial, including a hand-written note by the vice president, implicated Bush, and former press secretary Scott McClellan has since testified that Bush authorized the exposure of an undercover agent, that being the crime that was under investigation.

There are widespread concerns that Bush might pardon other subordinates for various other crimes that he authorized, potentially including torture, warrantless spying, a variety of war crimes, taking the nation to war on fraudulent evidence, and the abuses of the politicized Justice Department. Voices in the media advising Bush to issue such pardons include: Stuart Taylor Jr. (Newsweek 7/12/08) and Alan Dershowitz (Wall St Journal 9/12/08), while many additional voices have urged Obama to commit to not prosecuting.

The idea that the pardon power constitutionally includes such pardons ignores a thousand year tradition in which no man can sit in judgment of himself, and the fact that James Madison and George Mason argued that the reason we needed the impeachment power was that a president might some day try to pardon someone for a crime that he himself was involved in. The problem is not preemptive pardons of people not yet tried and convicted. The problem is not blanket pardons of unnamed masses of people. Both of those types of pardons have been issued in the past and have their appropriate place. The problem is the complete elimination of any semblance of the rule of law if Bush pardons his subordinates for crimes he instructed or authorized them to commit.

If Bush attempts this, here are possible responses:

1. Immediate impeachment of Bush and Cheney and various pardonees, even if they are out of office. (Here are arguments for the permissibility of such impeachments: http://afterdowningstreet.org/node/37834 )

2. Overturning of the pardons by the new president or by Congress, as Bush's lawyers told him he could do to Clinton's pardon of Marc Rich, which was a far more minor abuse of the pardon power.

3. Legislation banning self-pardons and pardons of crimes authorized by the president.

4. A Constitutional Amendment banning self-pardons and pardons of crimes authorized by the president.

5. Refusal by the courts to honor the supposed pardons.

6. Prosecution of Bush, Cheney, and their subordinates for their crimes.


With thanks to all who have aided over the past millennia in the establishment of the rule of law.


***

Lawrence Velvel, Dean of Massachusetts Law School, chairs the Steering Committee whose members include Ben Davis, Marjorie Cohn, Chris Pyle, Elaine Scarry, Peter Weiss, David Swanson, Kristina Borjesson, Colleen Costello, Valeria Gheorghiu, and Andy Worthington.


http://convictbushcheney.org

[Ichingcarpenter]

1. Thanks david

Great Post....

[Solly Mack]

2. K&R

[aquart]

3. Velvel????

Aww, that was my grandfather's pet name.

[Tangerine LaBamba]

14. He was my teacher in law school

Good guy, on the side of the angels. (Larry, I mean, not your grandfather, who was, I am sure, also on the side of the angels.)

They're dead wrong on this one, though. The pardon power is absolute and - remembering Gerald Ford - undefined, so it becomes whatever the President wants it to be.

Good for Larry, though.

[Skink]

4. Let's all hold our breath.

[bowens43]

5. The President's pardon authority is absolute and unlimitied.

that's the way it is.

[unblock]

8. and i'm immortal. my ability to survive anything and everything is absolute and unlimited

and will continue to be so right up until the day i die.

just because the supreme court has not yet limited the pardon power doesn't mean they never will.

if some president shoots and kills someone in cold blood on national television and immediately pardons himself for it, you can bet that the supreme court will quickly and unanimously find a constitutional limit to the pardon power.

[rhett o rick]

10. Wow, are you really immortal or just slightly immoral? My spelling ain't so good. nm

[CrispyQ]

13. There can be only one.

;)

[Tangerine LaBamba]

15. This Court?

Are you kidding? This Court is going to go the strict constructionist route and allow the pardon power to remain absolute.

Maybe another Court would find differently, but I rather doubt it. It's singular in its simplicity, and that renders it untouchable.

That's what I think, anyway.

[unblock]

25. well they don't want a democrat having that kind of power

they believe in their hard right philosophy more than they believe in republicans or in shrub, and they're no fools.
they know that a president with that kind of power would put the lives even of supreme court justices at risk, if a president were sufficiently motivated and evil enough to make do so.

if the case were to come up under a republican president, they would find a way to make a very narrow decision that didn't set a precendent so they could approve the specific use but not hand the power over to anyone else.

[Tangerine LaBamba]

30. Huh?

What are you saying? I'm sorry, but your comment about "a president ... would put the lives ... of supreme court justices at risk" lost me.

I think maybe you want to find out more about how the Supreme Court works so that you'll understand the concept of precedent. You seem to have a muddle idea of how the Court works.

[unblock]

45. i understand very well how the supreme court works in principle,

and i also understand all too well how this particular supreme court works in practice.

consider bush v gore, where the 5 right-wing justices voted for the right-wing candidate and declared in their decision that this, uniquely, was not a precedent-setting decision.


as to the putting lives at risk, consider the implications of letting a president pardon himself for murder. this means that a president could threaten to kill (or do anything else illegal) to a supreme court justice in any case before the court unless they decided the case the way he wanted. the "but that would be illegal" reply holds little water when the president can self-pardon and thus get away with any otherwise criminal activity.

[Tangerine LaBamba]

46. Declaring it is one thing,

and it carries no import. Consider how often such a matter might arise, and you can see the joke.

You have a vivid imagination. That's fun.

But, imaginary scenarios notwithstanding, the Presidential pardon power is absolute, and any Court, conservative or liberal, is going to abide by the simple wording of the Constitution.

That's my opinion, anyway.

Do you honestly think the impeachment process wouldn't kick in if a President were that imbalanced as to threaten to kill anyone? Do you remember Richard Nixon?

Sure you do. I don't think we have much to worry about - the pardon power is absolute, and it's going to stay that way.

That said, I can't wait to see what Chimpy Fucknuts does on his way out the door. Ought to be interesting.

[unblock]

50. my imagination is not particularly vivid at all. i just happen to know a bit about world history.

history is full of leaders who wielded power ruthlessly, up to and including murder of political opponents. i'm sure you can think of a few easily enough. if you think it can't happen here, THAT is vivid imagination at work.

i maintain that there have been such limitations placed on pardon power only because such cases have not come up and the supreme court has therefore not yet ruled on them.


the investigation and resignation of nixon seems quaint when you look at everything shrub has gotten away with. nothing like that kicked in for the last 8 years, so i don't know why you think impeachment is a sufficient deterrent for white house criminal activity. the man knowingly blew the cover of a cia nuke-monitoring operation for crying out loud!

[w4rma]

31. But they are fools. Greedy, selfish, shortsighted fools. (nt)

[rhett o rick]

9. Are you really series??? Nothing is absolute. Everything is interpretable especially the

Con-Fucking-stution. Although this is not the SCOTUS I would want making the decision.

[Land Shark]

40. "absolute and unlimited" is that why Article II expressly limits it to federal crimes? nt

[alittlelark]

6. Bush will be hospitalized for tests or a 'condition' in a month or so.

Cheney will take the reins for 2-8 hours and pardon him.



That is my nightmare.

[rhett o rick]

11. It really doesn't matter. No one will be held accountable for the atrocities against the world.

You see it's like this, there are two classes in the world (global) one is the aristocracy and the other is us. The ruling class looks out for their own. Our prisons are full and there ain't any (statistically that is) in there of the ruling class.

[CrispyQ]

17. They should be. But you are right, they won't be.

http://carolynbaker.net/site/content/view/851/1/

EXTRAORDINARY: CAPITALISM AT THE EXPENSE OF ALL LIFE, By Juan Santos

snip...

All it takes is one stroll down Wall Street to get that Wall Street is "America's" temple district - the sense of being on "holy" ground is palpable - and all it takes is one glance to get that none of the financial wizards really knows what's going on... they know not what they have wrought, they know not whom they have robbed; they have invented a house of lies so complex that they themselves can no longer follow the plot or the floor plan. What we know - and what they know, and what Bush knows and Obama and McCain - what they all know- is that the $700 billion the US government has earmarked for the swindlers and deniers is going to cover the lie, is going to keep their asses out of prison, is going to prevent revolt against their system, which profits at the expense of all of us.

===
And this is just what they did on Wall Street.

A long article, but worth the read. I don't think I could read an article as truthful as this one only about Iraq. "EXTRAORDINARY: EMPIRE AT THE EXPENSE OF ALL LIFE." I think my mind would implode at the inhumanity of it. I can't even fathom the death & destruction that has been done in our name.

And that's just this century.

[rhett o rick]

18. Yes, I know. It is hard to keep struggling. Everything you read is mind boggling. Maybe the

republican gullibles have something with their mindless gullibility. I have a hard time trying to figure just how much I should try to digest and fight against.

[pnwmom]

7. I thought the first Bush pardoned people for things he authorized. n/t

[Tangerine LaBamba]

16. He pardoned Iran-Contra people

They were Ronnie Raygun's people, but George H. W. was Veep, and famously claimed that he was "out of the loop" on that matter.

Lying old bitch.

[RufusTFirefly]

22. Iran/Contra was Bush's plot, not Reagan's

Let's face it: Reagan was permanently "out of the loop" for most of his Presidency. In that respect, he was the perfect President. He knew how to read the lines that were written for him. He chuckled, told folksy stories, and said "Well..." a lot. He frequently fell asleep during Cabinet meetings, only to have his handlers defend it as his "management style." In other words, he didn't interfere with the people who had the real power, including Poppy Bush.

[OmmmSweetOmmm]

24. Nope. Papa Bush was the ringleader and Ronnie was already having problems remembering things.

[dysfunctional press]

43. ronnie raygun never ran the show- it was poppy's deal from the get-go.

poppy was to ronbo raygun what darth cheney is to dumbya- as in being the one who's actually in control.

[Tangerine LaBamba]

47. I doubt it was GHWB's show, really

There were a whole lot of much more powerful people who decided that Iran-Contra would become reality, not all of them in the White House or even in the administration.

[dysfunctional press]

51. it started out in the cia...which was poppy's domain.

nt

[dysfunctional press]

42. he did- the OP is mistaken.

nt

[rhett o rick]

12. This may be well and good but it don't matter. You have to find someone to bring the charges. It

won't be any one in the ruling class. They tend to stick together or haven't you noticed. Besides Bush and Cheney will just move to Dubai, free from extradition. The working class goes to jail even for peacefully protesting while the ruling class skates even for genocide. This will continue until the gullible masses figure it out.

[ooglymoogly]

19. We are speaking here of sanity;

while we are dealing with insanity. That includes not only the president and his fellow thugs but all but a few of our own congress and a dangerous part of our judiciary; So I am not holding my breath. These are not the days of giants like our forefathers who would have dispatched these thugs in a heartbeat because they understood democracy depends on it.

[CrispyQ]

20. And don't forget the 46% who voted for McCain-Palin because:

1) "More wars" McCain - he will protect the Homeland (http://www.youtube.com/watch?v=PdJUCU1UH2w);

2) Armageddon Barbie - when the world goes up in flames, Jesus will return;

3) You're On Your Own - I only care about me. I don't want to pay any more taxes.

[jgraz]

21. Wouldn't such a pardon constitute Obstruction of Justice?

:shrug:

[davidswanson]

23. yes

of course

[skepticscott]

37. On what basis

does a criminal statute override a Constitutionally granted power?

[Tangerine LaBamba]

49. It doesn't

The Presidential pardon power, specifically enumerated in the Constitution, is absolute and obstruction of justice - who came up with that one? - doesn't enter into it at all.

[lame54]

26. In Bushworld anything is possible...

:cry:

[mdmc]

27. sounds like a challenge

[Bette Noir]

28. It would take a Constitutional amendment.

It's horrible to think that it would be needed. Nowhere in the Constitution does it state that the President is above the law.

[robinlynne]

29. But doesn't the person need to be convicted of a crime in order to be pardoned?

In other words, can he pre-emptively pardon for convictions which have not happened yet?

[Demeter]

32. That's What Ford Did for Nixon. Exactly That

[Art_from_Ark]

44. And what bu$h 1 did for Casper Weinberger

[pitohui]

39. no, not at all, and the precedent is president gerald ford

the president can apparently pardon someone for anything he may or may not have done at any time without any public hearing of the issues whatsoever

the ship sailed in the 70s, because we were so eager for "our long national nightmare to come to an end"

[Tangerine LaBamba]

48. No, we were not

There were lots of us who wanted Nixon to stand trial as a civilian, or even face impeachment as President. I, for one, as a law student, was heartbroken when he resigned. I wanted the process to go forth.

But, the only way they could get Nixon, ever the wily poker player, to resign and not make a fuss was to promise him that Ford would pardon him, and do it quickly, after he resigned. Otherwise, it would have gone forth properly, and we all could have seen the Constitution at work.

It would have been beautiful.

The phrase "unindicted co-conspirator" still pisses me off.

[Kire]

33. Peter Weiss?

the playwright?

Nice job with this piec. It is very important.

I'm confused about the last bit, like who exactly is this organization that put out the statement.

here is a link to the actual blog post that mentions this.

http://www.afterdowningstreet.org/node/37947

Best of luck with this. I will support it to the best of my ability.

Warm Regards,

Erik B. Anderson
Independence Township, New Jersey
Established 1782

[Jim Sagle]

34. Bush is a piece of never-elected FILTH who never had a right to occupy the White House

much less be in POSITION to authorize pardons.

Hang the lot of them.

[Raster]

36. Hear! Hear! Selected, never elected. Foisted upon the American people!

Impeach bush* and cheney*!:kick:Wake up, America!

[skepticscott]

35. Only #4 would be effective

The presidential pardon power supercedes everything else. The clear and explicit language of the Constitution admits only one exception, impeachment. The argument that if the framers had intended there to be other exceptions, they would have included them will hold sway with any court.

[pitohui]

38. if you say so

i say if nixon can essentially pardon himself by putting the stooge gerald ford in place then anything goes on the pardon front, unfortunately

we also have some pretty disgraceful pardons in the iran/contra era that suggests, yah, the president can pardon the bad guys he assigned to do bad things

[dysfunctional press]

41. bullshit- ever hear of poppy's xmas eve pardon of caspar weinberger & co.?

:shrug:

[peacetalksforall]

52. Cheney-Bush hate America - their hate is what we suffer. No obedience

and no regard for our Constituion, Bill of Rights, Treaties. No respect for the people on this planet, nor the planet. They are consumed with hate. The results of their hate also represent the Republican Party that fulfills the agenda. Cheney-Bush delivered whar the barons wanted. It's 60 plus years of wanting and taking. So they also hate us and the Constitution that establishes recognition of all of us.

[DissedByBush]

53. Dangerous

I see a lot of effort to destroy the concept of the pardon just to get at Bush. As the article noted, Bush looked at reversing Rich's pardon. The author wants to take an unconstitutional revisionist idea from Bush?

This is all dangerous. The absolute power of pardon is important, and we shouldn't endanger it just to get Bush. He would need to be impeached now. Anything short of that, other than an amendment, is unconstitutional.

[Vattel]

54. one could impeach him and use

the testimony of all of the people he pardoned against him. The pardons wouldn't cover perjury in the impeachment investigations.

[valerief]

55. K & R

:kick:

[Tab]

56. I wasn't aware you could do preemptive pardons

I thought you had to have been convicted, and only after that might you be eligible to secure a pardon.

For him to pardon someone for a crime before charges have been brought is highly unusual. To do so to someone acting under his orders is tantamount to confessing he ordered a crime to be committed.