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The Headline on January 19, 2009?
Will that be the headline on January 19th, 2009? Before he leaves office, will President Bush use his pardoning power to save the members of his administration from legal action?
Article II, Section 2 of the U.S. Constitution gives the president “Power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” A pardon removes both punishment and guilt.
The president’s power to grant amnesty and pardons is unlimited. Congress or the courts cannot block any individual reprieves or pardons. The Framers of the Constitution created the pardon power as having a narrow purpose in times of war and rebellion. Alexander Hamilton argued in the Federalist Papers No. 74, “In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the common wealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
The pardon power has been used as the Framers foresaw: George Washington pardoned leaders of the Whiskey Rebellion, and Andrew Johnson pardoned Confederate soldiers following the Civil War. In 20th century, Jimmy Carter pardoned those who had evaded service in the Vietnam War; however, it has also been used, as they did not foresee. A long succession of presidents has used the pardon power much more broadly. Bill Clinton is only the most recent president to use the pardon power to forgive a wide range of criminal offenses. Many more pardons have been controversial. Gerald Ford preemptively pardoned Richard Nixon for his actions in the Watergate Affair in 1974 for any crime he “may have committed.” George Bush’s 1992 pardons of six Reagan administration officials involved in the Iran-Contra Affair, including Defense Secretary Caspar Weinberger. Bill Clinton granted 395 pardons during his presidency, comparable in number to other recent presidents. However, of that total 140 were issued on his final day in office.
President Bush stands out in contrast to his predecessors. He has already denied more pardon and clemency petitions than any post-World War II president. In his first seven years in office, he rejected 5,966 requests, almost twice as many as Bill Clinton did in eight years, five times more than his father did in four years, and almost five times as many as Ronald Reagan did in eight years.
President George Bush and Vice President Dick Cheney stand accused of 39 grave and impeachable offenses, including war crimes, torture, warrant less wiretapping, and outing a covert CIA operative.
Most of these offenses are felonies for which Bush and Cheney can be criminally prosecuted after they leave office. But prosecutions will be impossible if Bush issues blanket pre-emptive pardons for Dick Cheney, Scooter Libby, other senior officials.
Senior intelligence officers are lobbying President Bush to issue pre-emptive pardons for intelligence officers who followed his orders in the torture of terrorism suspects, according to a former CIA officer. “He gave them the green light to fight tough,” the officer said. “The view of many in the intelligence community is that he should not leave them vulnerable to legal censure when he leaves.”
In addition to CIA and military officers, others could include David Addington and William Haynes.
Such a pardon would decrease the risk that any future administration might take on a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated a multitude of laws.
There is growing conjecture that Bush will issue pardons for the unlawful domestic surveillance program and torture program in his waning days in office. This 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 pressures for pardons may be increasing with some Democrats publicly talking about serious investigations.
A “blanket pardon” would raise serious constitutional and criminal questions, though there was some model in the Kennedy and Carter administrations. 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.
Some legal analysts said Bush might be hesitant to issue such pardons because they could be seen as an unspoken admission of guilt.
Before leaving office it is suspected that George W. Bush will issue a mass pardon, the largest collection of presidential pardons in American history. Bush will pardon Vice President Cheney, and a long list of officials involved in torture, eavesdropping, destruction of evidence, the CIA leak case and a range of potential crimes. On the destruction of evidence, disappearing e-mails, claims of executive privilege that most likely will be denied by the Supreme Court, false testimony to Congress, the list, again, goes on.
There is an important point to this, often not recognized in official Washington during the Bush years, where the unthinkable becomes a way of life, and acts have been done that have never been done by an American president or administration.
He will want to protect all those in his administration. For eight years his administration has sought to work in secrecy, using executive privilege as a claim to prevent Congress and the Justice Department from investigating the members of his administration.
The presidents ratings are already low enough that he wont care who he angers before he leaves office.
Presidential pardon power is nearly unlimited under the Constitution. The Founding Fathers clearly anticipated a corrupt President might pardon his co-conspirators, and specified impeachment as the remedy.
James Madison, the father of the U.S. Constitution, claimed “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter [pardon] him, the House of Representatives can impeach him; they can remove him if found guilty.”
A post-inaugural impeachment would prohibit those impeached from ever holding federal office, either elected or appointed. Arguably, impeachment would also nullify pre-impeachment pardons and permit prosecutions. Finally, impeachment would tell future Presidents they cannot abuse their pardon power to put themselves above the law.
Meanwhile, Democrats are proposing yet another commission to investigate the program.
However, even with a blanket pardon there is still risk of consequences for the Administration. Torture violates international law, domestic law, statutory law, customary law, American law, European law — the list goes on. Eavesdropping without court order violates a statute, FISA, that includes severe criminal penalties. If the courts ultimately conclude that these laws were broken, considering the number of individual violations, and the penalties for each violation, the potential sentencing liability for anyone convicted would be huge.
There will be a huge legal debate about the ability of a president to issue pardons so sweeping in their language that they cover all these potential areas of legal liability, and very possibly, it cannot be done.
But will Bush attempt it? Here is a list of some possibilities:
Donald Rumsfeld, Scooter Libby, Alberto Gonzales, Karl Rove, John Yoo, and Dick Cheney
- Conrad Black (fraud and obstruction of justice)
- Jose Compean (illegal arrest of an alien)
- Gilmer Hernandez (civil rights violation).
- Michael Milken (securities and reporting violations) Application in.
- Julius Nasso (conspiracy, extortion)
- Tom Noe (illegal campaign contributions)
- O.Henry (embezzling bank funds)
- Leonard Pielter (double murder of FBI agents)
- George Ryan (corruption)
- David Safavian (lying to investigators)
- Richard Scrushy (corruption)
- Don Siegelman (corruption)
- Jeffrey Skilling (fraud, conspiracy, insider trading)
- Ted Stevens (violation of ethics laws)
If you think the president should be held accountable for his actions and that there is possibility that congress should impeach him, write your congress man, you have more influence than you might think.