Ford pardon of Nixon
The Constitution was not easily ratified by the former colonies. There was not a universal recognition by all and sundry of it as work of genius. Nay, to the contrary, many saw it as a flawed document and arguments were made for and against it. Some of these arguments were held in constitutional conventions held in the various soon to be states. See, Elliot’s Debates. Some were held in a series of blogpost-like essays published by Madison, Hamilton, and Jay in various newspapers. See, The Federalist Papers. And some were held in the form of letters to the editor, miscellaneous newspaper OpEd pieces and even private correspondence amoung the Founders. See, Farrands Records .
If you want to know what the Founders THOUGHT they were enacting, what they intended, you go to these first sources. In law, there are several rules of statutory construction, one of which is you can go to "legislative history" of a law to see what the people who wrote it and debated it actually thought it meant.
You can do that with the Constitution as well.
In late 1787, there was considerable debate about whether the power of the executive should be vested in one person alone, or in a president who could not act without a majority vote of his cabinet. In response to James Wilson’s Speech at a Public Meeting, October 6, 1787 "Every Thing Which Is Not Given, Is Reserved", Samuel Bryan (blogger name "Centinel") made the following reply in an article appearing in the Freeman’s Journal, 10/24/87:
Such a check [requiring the president to get the consent of the cabinet] upon the chief magistrate would admirably secure the power of pardoning, now proposed to be exercised by the president alone, from abuse. For as it is placed, he may shelter traitors whom he himself or his coadjudicators in the senate, have excited to plot against the liberties of the nation.
Virginia Governor Edmund Randolph in a speech explaining his reasons for not signing the Constitution, December 27, 1787 "I Will, as an Individual Citizen, Accept the Constitution" advocated taking away from the president the power of pardoning for treason "at least before conviction". John Steven, Jr. replied to this speech in the [NY] Daily Advertiser , 1/21/1788, saying that since the pardon power has to be lodged somewhere, why not the presidency?
Alexander Hamilton appeared to believe that the president had only post conviction pardon power.
A President of the Union on the other hand, though he may even pardon for treason, when prosecuted in the ordinary course of law, could shelter no offender in any degree from the effects of impeachment & conviction. Would not the prospect of total indemnification for all preliminary steps [ie, pre-emptive pardon] be a greater temptation to undertake and persevere in an enterprise against public liberty than the mere prospect of exemption from death and confiscation, if the final execution of the design, …, should miscarry?
Federalist Papers LXIX [emphasis added].
Hamilton waxes poetic in his belief that the president will be so constrained by honor and a desire to do mercy so as to avoid even the hint of impropriety in the exercise of the pardon power. "The reflection, that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind." Federalist Papers LXXIV [emphasis in original]. He says that a president would so fear the risking the damnation of his fame for future ages –like General Arnold– that such fear would keep him from abusing the power. Federalist LXIX.
Next up, pardon power, the early years of the republic.
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Gah!
lhp, you are gonna LOVE this
cheney and abu torture have been indicted in texas (no, I am not joking)
Please forgive my rudeness but
Cheney, Gonzales Indicted By South Texas Grand Jury
Thanks for a thoughtful and thought-provoking post, LHP. It’s a nice break from the embittering fuckery that has been today.
Framers seem so long ago now.
What will be the new way to preserve and protect when trillions of dollars have vaporized and are causing a feeding frenzy with lobby?
When the new great depression is a code for union corpse being cleaned off the streets by blackwater while the media and water bottles are not allowed into New Orleans.
We had 30 years of lies, lies from over 200 years ago seem old school.
How they created such a great documnet that COULD be followed to good end is a mystery. But it seems pols have shit on that documnet and allowed Joe LIEbermans to “preserver and protect” it for so long that we are FxCKED.
Makes me ever so sad.
It worked until a lot got themselves put into position who’s aim was the neutralization, evisceration, and usurpation of governmental powers. Nothing anyone could devise would protect against that other than public awareness. That too was subverted insidiously.
The question is, once the defenses have been breached, can it ever work again, or be trusted to work again?
sorry, I panicked. Thanks LHP!
Whaaaaa?
GREAT reading lhp!
I would like to ask a question now if you don’t mind;
does in fact acceptance of pardon mean you admit to the guilt of it?
if so, actors accepting pardon will indeed be testifying against themselves if held trial in international court.
Is this true?
Panicked about what? Are you in fear of another LHP 99 part series?
perris has a post on it here
Perris,
You’rs gonna have to read the whole series to get teh answer to that question. no skipping ahead in the textbook.*g*
It looks to me like it is true, however I was taken in by that new york times hoax so we will know in a very little while to be sure if they really were indicted
Oh I love me some Federalist Papers!
I wish more Americans had read them.
Yeah, I just put up a short diary on Cheney’s indictmentb m bbm over at Oxdown Gazette. Comments welcomed!
Bob in HI
There will be no international court. Either they won’t have the balls to “nab” anyone or they will be to busy laughing at the criminals for sending so much money and power their way (or they will be the same people/interests).
We need to take care of our own messes first and foremost – and that is NOT going to happen. Oh and Obama, Reid, and Pelosi have said that if there was ever a doubt.
you know I love your posts so the prospect is like candy to me
but I am guessing that since international law is not subject to our constraints, they will indeed be allowed to use the pardon as an admition of guilt
therefore, these guys are pretty much stuck in the states forever unless they have personal guarantees they will not be held for international crimes by that international body itself
A lot of magical thinking, there, IMHO.
I think I beat you to it bob
TPM has further revelation. Story not as headlined it seems
always up for more LHP… “Gah” seemed to be the new “zed”. Just trying to be au courant.
I understand the charge against the Tx state Senator, I think I understand the part about ABu obstructing justice (well, until I read the indictment), but I don’t understand how a Cheney passive investment would subject him to criminal prosecution.
Can’t wait until the indictment gets posted on the web
Hamilton’s argument was largely sophistry. He was pointing out that the President’s pardoning power would be more circumscribed than that at the time of the Governor of New York. The pardoning power has morphed since then sometimes for good reasons most of the time not. Nixon, Iran-Contra, Libby, Republicans use it now for major league CYA.
Digg!
For those needing some good news
http://tpmelectioncentral.talkingpointsmemo.com/
Sorry, folks.
Remember, a competent DA can get a ham sandwich indicted for the murder of a pig. Apparently this DA is a whack-job.
It may be amusing, but Darth and Abu don’t appear to be in immediate jeopardy. More is the pity.
IIRC the International Criminal Court will have jurisdiction if it is show that the national courts concerned will not effect jurisdiction. IANAL
Hamilton had a lot of confidence in future presidents considering the causal link between power and corruption was already well established. Perhaps he believed our new nation was such a radical departure from previous forms of government that it would transform human nature. Alas, that did not turn out to be the case.
On Hamilton’s part? He hated Benedict Arnold and NYC in this days was a VERY SMALL TOWN. Arnold’s Law office was near where NY City Hall is today and Hamilton’s office was near where Trinity Church is.
Acccording to a bio of Gen Arnold I read a long time ago, they used to run into each other on the street and threaten to beat each other’s brains out.
Being a NY man about town, Benedict Arnold’s crimes loomed very large in the imaginations of New Yorkers. Hamilton’s essay was comapring the powers to be given to the president under the proposed constitution vs. the powers already enjoyed by the governor of NY.
In those days, the NY governor had a LOT of power
since it is sure to come up when bush takes out his pardon pen, has anyone ever asked clinton how he justified commuting the sentences of 16 members of FALN?
linkerage
Hugh, I’m at the beginning of the evolution. And I’m 9very slowly) building toward a point.
I’ve never understood this pardoning business. I can understand a President having the power to call for a re-trial, and possibly in another jurisdiction, but this absolute and blanket pardon business is just not right.
We really may need to amend the Constitution on this. We barely made it out of this administration with our country. (Course it ain’t over yet.)
Any signatory country to the Geneva Conventions can hold war crimes trials of nationals from any other signatory country, iirc Scott Horton’s interview of Scott Horton. The real Scott Horton (i.e, the lawyer, vs. the 30-something snot nosed libertarian with the phenonemal memory who does great interviews) said that it takes a long time (exhibit: Pinochet), but it never goes away. So Cheney is lucky to have a bad heart, but W not so much.
LHP–
Soul sister! You get aggravated, and decide to deal with your rage by plunging into some research on the issue! And we all benefit from the sublimation of your rage! Well done!
[Notice by the Punctuation Police: your exclamation point limit has been exceeded. No further exclamation points permitted.]
Sounds like something I’d do. My classmates put these words into my mouth in our High School Annual, the year we all graduated, “If I ever find love, I’d probably try to analyze it.” That hurt, but it wasn’t too far off the mark. “Research” has been my mainstay and my primary method of coping for most of my life.
Keep the good stuff coming. I’m looking forward to your next installment.
Bob in HI
The Bush era approach to the Constitution is much like that it had to economics, war, and many other things. Bush and his minions always thought that fundamentals didn’t matter anymore. The result was the trashing of the 4th Amendment, Katrina, Iraq, and the financial meltdown.
The Founders never thought they were making laws for the states.
They viewed their job primarily as placing limits on a strong central government.
The states were to be left alone — as separate political experiments.
Fast forward to 1940: Wickard v. Filburn: The U.S. government has the right to tell a midwest grain producer how much grain to produce.
Fast forward to the the 1960s: The 14th Amendment means all kinds of constitutional prohibitions apply to the states.
Great for many. Question: Do we still have a constitution?
Wasn’t directing my comment toward any particular person you cite, but rather on the general sentiments they espouse, which is that a pol’ long run reputation or moral rectitude will constrain him from getting away with anything that he can. There are many outstanding exceptions, but the rule is quite the contrary, and methinks it was so even when those folks were writing.
Thanks for the NYC color. I know much less about its history than I should.
Also luv the analogy of phamphalteers to bloggers. Caught onto that several years ago when some wingnut was complaining about screen names and anonymity on the web, and (on wnyc iinm) someone pointed out that’s exactly what the FFs did.
exes and ohs for South Texas.
LHP – will you be hitting on the issue of violations of the Constitution, directed by the President, as fodder for pardon and blanket pardons?
Back the way it was taught to me, you don’t construe a document to be meaningless, and the ability of the President to pardon for crimes against the Constitution committed at the behest of the President — pretty much nullifies the Constitution.
I resemble that.
I live in Midtown Manhattan, and my response to 9/11 was to read books about Al Qaeda, etc.
nice.post
The idea behind a pardon was supposed to be for people who might have technically violated the law, but for some mitgating circumstance ought nto be punsihed.
Of course, that’s what jury nullification is for, as well
You did, and you, too, had to eat some crow because of the TPM counter-story. Whatcha drinking today? I owe ya.
Bob in HI
Yeah, that whole Civil Rights Movement and Voting Rights Act was a bitch, wasn’t it?
Thanks. We had a rainy Sunday this past weekend, so I got to luxuriate in anafternoon in the law laibrary reading for fun instead of for work
I wasn’t planning on it from quite that angle, but the rest of the posts aren’t written yet, so…?
IANAL. The power of pardon was a major power of the executive leading into the insurrection of the colonies. The governors were appointed by the crown and carried the crown’s sovereignty in the colony. Generally, it was rarely used, other than to correct some judgment gone awry IIRC. It was further expanded by Lincoln during the civil war to ameliorate harsh martial justice. Lincoln’s successor Johnson used pardon to political ends in attempting to heal wartime wounds, much to the aggrievement of the Radical Republican contingent in Congress who wanted retribution enacted upon the rebels. That led to Johnson’s impeachment and near conviction. The power of pardon has been further enlarged slowly throughout the administrations since. That pace gathered momentum since the Nixon administration to its present form. It may be necessary to revisit constitutionally this subject.
I just luv me some jury nullification. However, since I’ll never serve on another jury, I won’t get the opportunity. (And my jury nullification would be OK, but everyone else’s would be bogus.)
If you don’t understand my point, mission accomplished.
Hint: any story that claims indictment of any W person is bogus: either a mock or a nutcase.
Do it if you have time. I’m really interested in that too.
that “snot nosed libertarian with the phenonemal memory” also when i complained to him about something that he wrote (i thought it was way over the top sexist), he changed it and apologized.
Righto. Constitutional amendments on that subject coming up right after the economy is rescued from depression, two wars are won, and war criminals in W admin are tried.
Sorry to be so flippant, but I think that won’t come on the national radar until some prez pardons all his death squads that have gunned down millions of citizens. And by then, of course, it will be much too late.
Are you masochistic? Reading CFR’s, Reporters, AJ, ALR’s, Digests, etal is fun…? ;-)
I love both Scott Hortons, though with the youngun you have to just forebear some of his rants. Nice to know he lives up to my expectations, which is that he is honest. Verrrry verrry rare.
i’m obviously way to tired and brain dead to be allowed near a keyboard.
but one of the joys of living alone is there is no one to say i can’t have pie for breakfast or to take my keyboard away.
OT!
Don’t know what you’re talking about. Your comment was completely comprehensible.
Agree about advantages of living alone. Though late at night after several drinks it might be good for someone to take my keyboard away.
Is that the final? I also heard that about a 2000 vote differential will not trigger a recount, and your figures show Begich exceeds that.
I liike SCOTUS decisisons, what can I say?
Tweety’s new feature: Name that Pardon. Sorta on topic.
i was going to say that is why i like him – he comes off as intellectually honest and also with genuine concern for others (unlike most, but not all, of the libertarians i’ve met). both very important in my book.
Not flippant at all. I am certain some erudite well-meaning lawyer will discover a way, out of the document and its codicils, some all to apparent device to arrive at a modification the courts will approve. I have faith. /s
it’s your keyboard. lol.
I have a very tolerant attitude for anyone who really delves into issues and Scott Horton the Younger does that in spades.
Glad we’re on the same wavelength!
There are certain times when personal responsibility falls short.
I’m doing this series for Tweety. Hr brought up the subject of pardons last week and that got my juices going on the topic.
I started the reseach for this on 4th of Jukly last summer and never got around to writing it up, then Tweety reminded me
Just glad my rendition of remembered history weren’t jumped upon.
Tis late, adios.
Sean Quinn at 538 gives a good rundown… Also cites the Anchorage Daily News report that a recount is likely…!
BTW selise, MSNBC reports that auto execs were begging congress. That was precisely my Q. Were they begging congress or pretending to beg congress. We need to understand our enemy, as well as our friends (assuming we have some).
Good on you. It’s nice when someone can really turn a sow’s ear into a silk purse.
No, sorry. From Kos:
Headline is roflmao. Begich first Alaska D since Gravel. OMG. Imagine arriving on the senate floor with that bio!
Would luv me some Stevens paying for a recount. Would hang on every tick.
Late? Where are you?
welcome to the human race.
Nicest thing that’s been said to me in at least a year. *g*
Especially the way those people up there work. Count votes one day – four days off – count one day – four days off
my first take is neither (but did not listen to the whole thing and when i did listen it was mostly without good focus).
i thought they were trying to walk the fine line – wanting to get the $$$ but not wanting to appear so desperate that real constraints could be imposed. but will have to listen to some of it again when i am not so tired or distracted (same for this morning’s hear which i thought was very important for revealing how corrupt, really criminal, the so called bailout process is).
9 hours ahead of the posted time – Spain
Did you see Colbert Report last night about all the impediments the Alaskans face in counting votes? Some of them are brought to HQ on the backs of polar bears. They’re devishly difficult to train to do their jobs.
that reminds me, i started to put together a legislative history for the decision not to regulate otc derivatives. should finish it up.
I love Barcelona!
OT If the big 2 1/2 were to go under what would the credit default swap exposure be?
Sounds good. I’ll have to look that one up!
Here’s my take (color me naive). I think they (auto execs) were being honest & upright. (Well, on the corp exec scale that is.) I have observed that execs in cyclical industries go on the straight n narrow when times get tough. So I think they’ve run the numbers and are being straightforward. Now, you needed to pay attention to their assumptions, which will not come to bear. But that is analytical SOP (shouldn’t be, but is), so that’s OK. So begging or pretending to beg: 50:50. Don’t think it’s a done deal, but think the execs expect it will happen.
Training is one thing getting them to put on the back packs would be a SOB.
and look out if caribou barbie is flying by.
You take my point.
And to think in MN they were having hissy fits over 32 votes they imagined were left in a car trunk
not a fraking clue.
maybe ask hugh? or masaccio recently posted a comment and link might give you what you are looking for.
thanks. will keep it mind when i relisten.
It is a gorgeous city, interesting history, a cultural capital, and very expensive. Last year though, they nearly ran out of water, bringing water in on tankers. Madrid is another, capital of empire, and shows the wealth and glory. Granada though smaller has a magic that is uniquely attractive. Not been to Seville or Valencia yet, Spain is an enchanting country, and has much to offer with its history and experience.
Later
we’re several threads behind… pelosi just came on my radio so i’m going to take a break. do not want to listen to speaker off the table right now.
later pups.
Very late to the thread, haven’t read it all yet, but how about a posting on who you would pardon if you were in Bush’s shoes?
E.g. Leonard Peltier – apparently Clinton almost pardoned him.