How Likely is it that Bush Pardons Himself?

>> Wednesday, July 23, 2008

As the Bush Presidency mercifully draws closer to its end, the question of Pardons has started to appear. Given the criminal nature of the administration, many feel like the mass pardons are coming. I find it hard to disagree with this sentiment. Like every other aspect of power under President Bush’s purview, this too will be abused. The question becomes in what way? The power of the pardon is a sweeping one derived from the powers of the English monarch and so it has many possibilities. It is hard to imagine that Bush, who already believes himself a King, will forgo this temptation to insulate him and his henchmen from any criminal repercussions.

When I first read about the idea of Bush pardoning himself I thought, “How is that even legal?” As it turns out the question has never been resolved, as the situation has never occurred. Like many things under Bush, the President protecting himself against future prosecution would be a first. The only apparent limits on the power of the pardon are, cases of impeachment and money paid into the Treasury or paid an informer. The consent of the pardoned is not required for the pardon to be issued.

Originally, the pardon did require an acceptance by the pardoned. In United States v. Wilson, 32 U.S. (7 Pet.) 150, 160-61 (1833) Chief Justice Marshall wrote, “It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court.... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” His acceptance doctrine has not stood the test of time.

In Biddle v. Perovich, 274 U.S. 480, 486 (1927), the court allowed the commutation of a death sentence against the wishes of a prisoner. The court reasoned that, “A pardon in our days, is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” This seems to very neatly take the power to refuse out of the hands of the pardoned.

The pardon is an interesting power because it is so broad. It is hard to imagine that the people who fought so desperately against the over broad powers of the king would be willing to grant powers of similar scope to the new American executive. Yet, that is exactly what happened. Now this power has fallen into the hands of President George W. Bush who will no doubt use it wisely. Note that his definition of wise may very from yours.

As I stated earlier the question of whether a President may pardon himself has yet to be resolved. The question briefly arose when President Clinton was leaving office with the specter of impeachment looming over his head. The Constitution simply says that the president "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." In Clinton’s case, it appeared that he could have immunized himself from criminal prosecution from perjury but not from the impeachment itself. In a way, this makes limited sense. I doubt that the framers wanted to allow the president to circumvent impeachment all together simply by pardoning himself. Why they would allow him to avoid criminal prosecution is up in the air.

At the very least Bush could try to pardon himself. His legal henchmen are probably chomping at the bit to prove that the executive can really do what ever he wants. Although Bush pardoning himself might poke a minor theoretical whole in the argument that if the president does it, it is by definition legal. Why do you need immunity when you did nothing wrong?

In the event that he does try, things could get very crazy. If Bush is brought up on federal charges after her pardoned himself it would be up to the judge in that case to decide whether the pardon is valid. The judge might rule that the judiciary is not permitted to interpret the meaning of the Constitution in this matter. The rationale behind this is that the Supreme Court has ruled that certain constitutional interpretations are the province of "political" branches, not the judicial branch source. I find it unlikely that the court would pass on the chance to decide this constitutional matter. The outcome though is in doubt depending on the composition of the court after the next president is sworn into office. Can you imagine the court with his own appointments sending him to federal prison?

The fact that the charges against Bush and his underlings have not been filed is of no consequence.

While pre-emptive pardons remain very rare, there are a few notable exceptions. Perhaps the most famous presidential pardon of all time occurred before any charges were filed. Gerald Ford's pardon of Richard Nixon absolved the former president of "all offenses against the United States which he ... has committed or may have committed or taken part in" between the date of his inauguration in 1969 and his resignation in August 1974. In other cases, presidents have pardoned individuals after criminal proceedings have begun but before a judgment has been handed down. In late 1992, less than a month before leaving office, President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who had been indicted earlier that year on perjury charges surrounding the Iran-Contra affair. (A lawyer for Roger Clemens' former trainer Brian McNamee claimed the pitcher might receive a similar pardon from Bush if he were ever indicted.) In addition, broad presidential amnesties—like the one President Carter issued to those who had avoided the draft during the Vietnam War—are essentially pre-emptive pardons issued to a large group of individuals. source

The President may pardon anyone after the crime is committed. The exact offense is not needed as broad language is typically used such as the language Ford used for Nixon, "all offenses against the United States which he ... has committed or may have committed or taken part in”. This allows Bush to stay vague about the crimes committed so we would not even get the relief of knowing exactly what they are. It also makes sure he does not forget any.

Do not think that Bush will be unable to exempt everyone in his administration if he so chose. There are also several examples of broad amnesty grants. These examples include Washington in 1795, Adams in 1800, Madison in 1815, Lincoln in 1863, Johnson in 1865, 1867, and 1868, T. Roosevelt in 1902. The Supreme Court validated this practice in United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872) and United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870)source.

It was brought up in another diary that those who are pardoned can be compelled to testify in court as the 5th amendment is no longer applicable. This is an interesting argument as it is true that there would be no threat of self-incrimination as the pardon removed all potential threats stemming from the crime. If the mass pardons are done correctly though there should be no one to put on trial. Ignoring that, it would seem that the pardon does force the person receiving it to testify. The case law concerning this is Boyd v. United States 142 U.S. 450 (1892). In Boyd the Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect.

The inability to assert the 5th amendment was later reinforced in Brown v. Walker, 161 U.S. 591 (1896). In Brown, the Court said: “It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed.”
Therefore, if Bush did pardon himself and every one around him and his self-pardon failed he would be in a great deal of trouble, especially as a person may not refuse a pardon. In that nightmare/glorious (depends on your point of view) scenario every one he pardoned could be compelled to testify against him and that is not something he would want.

There is not a great deal that congress can do to prevent or alter the effects of the pardon. Congress tried on July 12, 1870, to make proof of loyalty necessary to recover property abandoned and sold by the Government during the Civil War. This was struck down in United States v. Klein, supra. Chief Justice Chase for the majority: “[T]he legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end.” This means congress will not be passing any laws to punish Bush if his self-pardon holds up.

It looks like it comes down to some simple risk-reward calculations for Bush. If he feels like there is no chance he ever faces federal charges he might as well save his pardons for people donating to his library. If he does feel like there might be charges in his future he might just pardon himself. The last possibility is that he just tries to immunize any one connected to him for the last eight years including himself in the belief that nobody would succeed in discrediting his self pardon. It is hard to imagine him passing it up but i think he does. After all no one else seems to be facing any federal charges over anything so why would Bush worry about any of them in his future?


O-le,O-le, O-le, O-le! O-le, O-le!

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