Can Bush Pardon Himself?

By David Swanson

Can President Bush pardon himself of crimes like warrantless spying, torture, and aggressive war? Can he pardon his subordinates for following his instructions, and do so before they're even indicted? There's a good chance he'll try it. There's also a chance some Congress members will preemptively push back against such preemptive pardons, by legislating limitations on pardons, by introducing an article of impeachment, or simply by staking out a public position.

If I were in Congress I'd send the president a note something like the following. You might want to ask your Congress member to do the same.

Dear Mr. President,

If you issue pardons that do not fit a reasonable definition of pardons, that in fact abuse the pardon power as you have abused so many other powers, we will support your immediate impeachment before or after you leave office.

False pardons that we will not accept from you or any future president include:

--self-pardons of the president;

--pardons of any staff or contractors of the executive branch, including the vice president, of crimes authorized by the president; and

--preemptive pardons of any individuals of crimes for which they have not yet been convicted.

Alexander Hamilton defended the pardon power in Federalist 74, suggesting that "the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution [in the president]." A FELLOW CREATURE is clearly NOT the president himself. Hamilton discussed the possibility of "the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others [were the pardon power to be given to more than a single individual]." Clearly the CONDEMNED PERSON is someone other than those holding the pardon power and is someone who has ALREADY BEEN CONDEMNED. Hamilton discusses the possibilities of pardons only "when the laws have once ascertained the guilt of the offender." A preemptive pardon was not even imagined by this discussion. A pardon simply was something done after a conviction. Hamilton called pardons "exceptions in favor of unfortunate guilt." Guilt comes after a trial, not before. Hamilton concludes his essay thus:

"[I]t would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt."

And yet, what other than a preemptive holding out of the prospect of impunity, are we to find in your directive of February 7, 2002, claiming immunity from the Geneva Conventions, or the various memos of your subordinates similarly claiming a right to illegally detain and torture?

George Mason argued that we needed impeachment in the Constitution because a president might some day try "to stop inquiry and prevent detection" of wrongdoing within his administration or might "pardon crimes which were advised by himself."

James Madison maintained that if "the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty."

When these men gave the president the pardon power in the Constitution, they clearly did not intend it to include preemptive pardons, self-pardons, or pardons of crimes authorized by the president. They thought such abuses merited impeachment. In fact, they thought the possibility of such abuses justified the creation of the power of impeachment in the Constitution. And some of these abuses -- those of self-pardon and preemptive pardon -- were so outrageously counter to the basic idea of a government of laws, that they lay outside the imagination of our nation's founders. Their unacceptability went without saying.

The pardon power has been abused by presidents, including Ford, Clinton, George H.W. Bush, and others. It will be abused no longer.

I am committed to upholding the Constitution. If you attempt false pardons, you will be impeached.

Sincerely,

****

NOTE:

"Pardon me? The constitutional case against presidential self-pardons."
Article from: Yale Law Journal
Article date: December 1, 1996
Author: Kalt, Brian C.
http://www.jstor.org/pss/797310

This article makes a case against self-pardons and in so doing makes a case against pardons of subordinates. But it claims in the following footnote that preemptive pardons have been ruled acceptable:

[FN12]. See Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866); see also Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975) (confirming validity of Ford's pardon of unindicted ex-President Nixon). If a pardon were issued before the crime were committed, it would not be a pardon but rather a suspension of the law. See Humbert, supra note 10, at 63 & n.45.