Thank you LHP. I wish we didn’t have to learn as much about pardons as we do.

Hey, I wonder how Scooter and Mark Rich are making out today? Borrowing from (no longer applicable or available to private citizens) former bankruptcy terminology, did those boys each get a “fresh start in life” from their respective executive commutation and pardon? Sure hope so.

I can think of a few pardons shrub owes: Jose Padilla, John Lindh, Yaser Hamdi (you know, the native-born US citizen who was held without charge in a dungeon somewhere for a few years, then was exiled to Saudi Arabia with the “voluntary” cancellation of his US citizenship)

do you really think that shrub will have the chutzpah?

So your question is are the upcoming pardons for criminal or political crimes.
Who will ultimately decide, the gang of five on the Supreme court?
And say, if Dick Cheney gets a pardon how would we go about discovering the crimes pardoned. Is the taking the fifth his trump card?

I see all kinds of sweeping statemets being made about pardons, my favorite is that they are supposed to be “unreviewable”

Well, if they are unreviewable how came I found so many Supreme court cases about them?

–still reading and I have not even attempted to do the full list, just the ones that looked like they were changing the narrative.

What, to do a bucket of lst minute pardons like Clinton did? Or to pardon his conspirators like Poppy did?

When has Shrub ever shirked in the chutzpa department?

Hey – Why not do both? Get a two-fer — like the old Doublemint gum commercials? “Two, Two, two types of pardons in one!”

Cementing his place as the worst President ever, I look for W. to announce an ‘all aboard’ for the Chattanooga Choo Choo.

No what I’m saying is there appears to be two different standards:

1) for political crimes-like rebellion there can be pardon without charges ahving been laid, there can be pardon while still a fugitive, there can be mass pardons by catagory (though acceptance and delivey of the pardon is apparently not waived)

2)for criminal crimes, the pardon come AFTER conviction, cannot be a fugitive, acceptance of pardon=admission of guilt, usually have to have completed your sentence-unless you are applying for commutation, pardon can be conditional –substituting one punishment for another and then you can’t challenge the new punishment cause you took the deal

There’s gonna be a ton of fucking pardons by Bush, I’m betting in January. When is really the only bet. Who and how many you can figure out on ur own.

It would not surprise me one tiny bit

ya know i am a dreamer. i hope fer a recognition of events. at long last, sir have you no decency/shame.

Mn looseheadprop I love these posts

my comments (ianal)

a)

It may be absolute or conditional. It may be controverted by the prosecutor

this is interesting stuff here, however;

b)

The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment.

“b” seems to mitigate “a” when it comes to the president’s right to pardon, however, I think it does not mitigate the prosecutors’ right to controvert.

the president has unlimited right to pardon, this cannot possibly mean it eliminates the right of the prosecutor to controvert said pardon.

am I right about that?

of course this scotus would side on the side of this president so I am only being hypothetical for some future scotus that were not ideologues

…I am only being hypothetical for some future scotus that were not ideologues

Ah, maybe my children will see such a day…

I think the jury may be out on a few topics. I don’t think pardons require delivery to, or acceptance or an overt admission of guilt by the pardonee to be effective. I believe a pardon is effective when issued, though the law may deem the existence of the pardon an admission.

A pardon may “not restore a lost office.” It does take away ab initio the applicable crime. That is, a pardon confers immunity from liability as a consequence of deeming the pardoned behavior not to be criminal, in the instance and for the person referred to in the pardon. The behavior itself is still a matter of record, but not its status as a crime.

The distinction, I think, is this. If the commission of a felony is a predicate for removal of a license, then the predicate felony is deemed not to have existed. If, however, the same behavior, without conviction of a crime, is adequate to disqualify an office- or license-holder, then that would bar the pardonee from holding that office or license. As an analogy, O.J. was not convicted of murder, but his alleged behavior was sufficient to convince a civil jury that he should be liable in damages for two killings.

I believe a pardon is effective when issued, though the law may deem the existence of the pardon an admission.blockquote>

and there is the rub, I asked looseheadprop about this in her first installment, I was going to ask again and you set the question up very nicely

suppose the criminal is held and tried outside the juriisdiction of the pardon, ie, the world court or ANY sovereign state,s courts

if issued and accepting pardon, does this constitute testifying against yourself and you would have no defense, you have admitted guilt by accepting pardon and the court is not influenced by that pardon

I suspect looseheadprop will give me another “tune in next weeK” but this question is quite fun to consider

The Decider’s such an excellent Christian that he’ll use Christmas as a cover to start his pardoning frenzy.

“though the law may deem the existence of the pardon an admission”

thank you, sir. i will hang on to that possibility. appreciate the post.

Yep, my bet has always been 12/24/08 for the Scooter Libby pardon (date chosen in honor of Poppy’s pardons of Cap Weinberger, Elliot Abrams and the rest of the Iran/Contra crew.

I wonder how much Bush’s legacy will figure in granting blanket pardons to anyone who might be connected to the spying on Americans, torture, or outing of a CIA agent for political purposes? If Bush wants everyone to believe he never did anything wrong, then why pardons for these people? If he does pardon it will obviously look like he lied all along about doing nothing wrong. Might Bush be better off not pardoning and hope that Obama’s mood of reconcilliation will just keep this all under the rug, and if their are investigations, indictments, and convictions, leave it to Obama to decide to pardon those involved that are ultimately dragged in to court.

how about the merely corrupt? Delay, Cunningham, Stevens, etc, etc?

Are you suggesting that the right to controvert would exist AFTER the pardon was issued? I was reading it to mean that the prosecution would have the right to object before the pardon was issued.

Or are you saying that if the president pardons person X for Ycrime and X is alter charged with Z crime and tries to assert the aprdopn as a defense, that the prosecution has the option to controvert that the aprdon applied to the new crime?

The last bit, i think is true. And I know that under the rules in the Office of Pardon Attorney if the prosecutor who got the conviction which is to be pardoned objects to the pardon, that is supposed to be give HUGE weight–

Which is why Eric Holder ahd to sneak the marc Rich pardon around behind the backs of USAO SDNY, he knew they would object.

Ah, but will Rove Addington, Cheney, Yoo et al also be on the recieving end that day?

I am willing to bet long bucks that there is right now an ongoing negotiation between Shrubya’s folks and the transition team about who/what will investigtated for that stuff. Don’t forget, Obama voted for telco immunity

Precedent in pardons, like past performance of a company’s stock, doesn’t seem to predict future behavior. It’s never restricted this administration’s claims, nor is it likely to have much influence with the current Supreme Court.

The art, I suspect, is in the language the pardon uses to refer to the persons and crimes covered. I expect that Shrub’s pardons, presumably already drafted by David Addington, will be as inclusive as a mortgage loan agreement.

To Shrub, everything is “just politics”, he doesn’t mean it, he’s really a nice guy when he’s not a politician. [sic] He would argue that these are all political pardons, and that they are necessary only because of his opponents’ attempted “criminalization of politics”. That argument falsely confuses criminal behavior with whether the perpetrator gets caught committing it, but it’s an argument his defenders’ are bound to make.

I’m not real sure but it seems that the Bush family has always been good about protecting those who can protect them but if there’s no direct connection, folks are left on their own.

Which is my way of saying that yes to Rove and maybe Cheney but not so much for Yoo and Addington.

I don’t think those guys have that much to do with Bush’s legacy. They were not under the umbrella of his administration and are already convicted for what they did. They are GOP members but other than that they acted separate from the executive office being members of congress and a separate branch of the government. I don’t think pardoning Delay, Cunningham, Stevens would be looked on in the same way as spying, torture, and the CIA leak case would be by historians.

An int’l or foreign tribunal would usually look to see whether, under the local law of the alleged perpetrator’s country, the pardon was valid.

If valid, but in defiance of generally accepted facts and recognized law, the pardon would be evidence that the perp’s home country is incapable of exacting justice. That would bolster an int’l or foreign tribunal’s claim of jurisdiction: it should adjudicate the claim of, e.g., war crimes, because the perp’s government cannot or will not do so.

This appears to me to be a difference in the application of the pardon power, not in the limits on it.

While the power to pardon is a legal power, it is an eminently political tool of the executive. The “political” pardons you cite are easily identifiable political acts, designed to somehow effect a change in the political landscape.

But the “criminal” pardons are likewise political in their administration, in that the executive may have to (and often does) at least attempt to justify why the pardons were granted.

Take Ford’s pardon of Nixon. Whether you think it should have been granted or not, Ford justified granting it on POLITICAL grounds, despite absolving Nixon of any need to face criminal charges which were certainly in the offing once impeachment was out of the way: Conspiracy to obstruct justice, perjury (to both Congress and the Courts), etc., etc., ETC. It was a pardon for criminal acts, granted (says Ford) for the good of the country politically.

It’s not that the executive cannot issue a CRIMINAL pardon (as opposed to a political one) before conviction while the accused is a fugitive and protesting innocence. It’s that it is a helluva lot harder to justify the pardon politically if you are the one granting it. (For some, Ford’s pardon of Nixon was why they voted for Carter in 1976.) It’s much, much safer to pardon someone who is sitting meekly in jail, admits their guilt, and weeps at your feet saying how sorry they are for doing their terrible crime.

Especially if you are a Democrat, fearful of being seen as soft on crime. (See Davis, Gray, Gov of CA). If you have a reputation as being a “hang ‘em high” member of the GOP, OTOH, you can do just about anything you want.

Interesting list on pardon speculation
http://www.slate.com/id/2204984/

Milken’s up for one, apparently.

“(and yes, I consider Viet Nam war opposition to be a political struggle)”

what else WOULD it be.
or how could it be construed as anything BUT a political struggle.
i’m sure there are those with contrary opinions, but logically………..
i’ve never thought of VN war opposition as anything BUT exactly that.

I don’t see Bush throwing them a lifeline. I’m not sure he can even remember their names at this point.

that is our problem right now. generally accepted facts are withheld by the cloak of secrecy.

I think Obama’s vote for telecom immunity was more of a “hey, they were trying to be good citizens” — sort of “Good Samaritan” justification. (Never mind that if they really wanted to be good citizens, they would have asked for a damn warrant. . . but I digress.)

What could Bush possibly have to negotiate with, when it comes to this discussion? He can try to persuade Obama to do (or not do) certain things, but negotiate with him?

How might you finish this hypothetical statement by Bush to Obama: “You lay off investigating my administration, and I’ll . . .”?

Precedent in pardons, like past performance of a company’s stock, doesn’t seem to predict future behavior. It’s never restricted this administration’s claims, nor is it likely to have much influence with the current Supreme Court.

Interesting point. Nonetheless, lawyer types like myself are precedent focused, also it gives us some ammo to shape the story–or at least guidance.

I think the current SCOTUS may be more suseptable to a changed public mood, so the trick is to educate the public about what has really been the history of pardons, and not just focus on the precendents set with pardon abuse in the laast several decades.

The abusive pardons were not challenged in court, so they actually don’t have as much value as precedent as those that have been ruled on. Or at least that’s how it’s supposed ot be.

I think we’ll all be shocked by the volume of pardons coming from the Decider.

Yep. I agree that Shrub’s pardon list will probably be longer than Nixon’s, if only because Cheney’s people are, in all likelihood, calling the shots, and they will be the prime beneficiaries.

The interesting bits may be who gets left out of their Christmas/Holiday Pardon List, and what they did (their jobs?) to annoy the Cheneyites in order to be so lucky.

Oh I think so to, I agree, hence the smooth transition and “complete cooperation” touted by the White house. If Obama is going to be as Lincolnesque as everyone says he is, he may view the past divisive eight years as a silent civil war between the left and right that needs to be healed. That’s why I think he is likely to let Bush and his thugs off the hook for most of what they did and not persue it so he can move the country forward in this critical time. But what is Obama getting in return? Is there a deal with the GOP minority in congress to cooperate on things like healthcare and future stimulus packages for laying off investigations?

i don’t think the shrub has anything except martial law as a backstop right now.

LHP,
First, thanks so much for the valuable history lesson. You have done a great service, and I look forward to your future studies!

Second, you wrote,

I am willing to bet long bucks that there is right now an ongoing negotiation between Shrubya’s folks and the transition team about who/what will investigtated for that stuff. Don’t forget, Obama voted for telco immunity

I’ll bet you’re right. However, I do not assume an Obama cave-in on all counts, as he holds a stronger hand right now.

But consider that Bush has a track record of being parsimonious with pardons. I think the pardons he issues will be limited to a few of his closest partners-in-crime, that he knows personally. And here is what I think the bargain with Obama will be: Obama won’t go after Bush himself, as long as Bush does NOT pardon most of the guilty parties.

Bob in HI

I agree, though an intersting thing about the Whiskey Rebllion case, the fugitive was not charged with insurrection, he was charged with attacking a mailman and stealing the US mails (for which the penalty is death, BTW–DON’T mug a mailman!)

His was charged with criminal crimes, but b/c he did this in furtherence of the insurrection, the court looked at them as political crimes. It was his status and a rebel that made the difference.

Likewise, Nixon’s status as a committer of treason, made the criminal crimes with which he committed the treason, political. or at least, tha’s how I would argue it.

The same arguemnent might apply to Cap Weinberger–except I don’t know that Iran Contra rises to the level of treason. it was the vioaltion of a statute.

Are you suggesting that the right to controvert would exist AFTER the pardon was issued? I was reading it to mean that the prosecution would have the right to object before the pardon was issued.

that’s the way I read it however you are getting it in better context then I am

In Wilson, Marshall makes the point that if a judicial proceeding has begun and the pardon is to have force, the court must be informed of it so that it can ascertain it covers the actual case the court has before it. The court isn’t questioning the pardon per se but only verifying the conditions of its application. And to do this, it has to formally be made aware of the pardon and its conditions.

In ex parte Garland, my understanding is that because Garland was never convicted in a court of law of being a rebel the pardon extended to his re-admittance to the bar. This is different from the Scooter Libby case where Scooter was convicted and so his disbarment would stand whether he was later pardoned or not.

ya don’t think they actually talk about this stuff do you?

Because technically, not reporting for the draft when you number comes up, or not registering for the draft is a crime.

Which is why draft dodgers needed that pardon

. . . and how the unlucky ones choose to display their displeasure.

Legally speaking, have their been cases where a boss was pardoned, and subsequent to the grant of the pardon, an underling was indicted, prosecuted and convicted for crimes they were directed to commit by that boss?

You want to lay off investigating the line people at NSA who were just doing their jobs listening in on theose calls, translating tham, cataloguing them, etc, because it’s nt fair to make them suffer for what I , Shrubya did.

If you go after them, I and the rest of the GOp will accuse you of being consumed with revenge. i will not do the “ex presidents are not supposed to criticize the new regimne” thingy. i will pound you as an extremist engaging in a soviet style purge, a pogrom

could be. ya never know.

Ah, back room deals, they never become extinct

nah, darth would say that not shrub.

No, in Garland the Congress had set up a litmus test oath to be re-admitted to the bar.
The oath was that the person had to say they had never been a rebel. Since tha pardon only erases the crime, not the conduct, there was no way garland could truthfully say that.

Garland argued that the pardon negated the oath.If you read garland carefully, the court finds that the law requiringf the oath is unconstitutional, which is why I contend that EVERYTHING they say about the expansive all consuming nature of the pardons–is just dicta.

Think they actually talk about this stuff? yeah

I don’t think Darth or Shrub says that to Obama. NOOooooo. This happens two or three levels down the food chain. Does Darth dictate the talking points to the person who will do the talking, yeah.

I think the jury may be out on a few topics. I don’t think pardons require delivery to, or acceptance or an overt admission of guilt by the pardonee to be effective. I believe a pardon is effective when issued, though the law may deem the existence of the pardon an admission.

I think this reflects the evolution of the pardoning power over the years. By the time you get to the Vietnam War amnesty, this is essentially where we are at. The main thrust of the amnesty is that cases will not even be raised by prosecutors so that no acceptance or admission of guilt is necessary. Only in those cases where a proceeding was in progress or a judgment had been made would those affected by it need to raise the issue of the pardon/amnesty. I’m not even sure this happened much or that it required court approval. I would think that if such cases existed notification to the prosecutor would be enough for charges to be dropped. For those already convicted and serving time, it could have been handled between the Administration, prosecutors, defendant’s counsel, and the prison system. No court involved unless there was a dispute. But again I’m not even sure it happened for the Vietnam War pardon.

politics is disgusting.

I don’t have an answer. In the case of team Cheney, I imagine they would have Shrub pardon anyone they considered to have info that could directly damage them, regardless of whether they annoyed Big Dick. The goal, I surmise, would be to reduce a prosecutor’s leverage over a witness, to lower the odds that a witness against them would have an incentive to spill the beans or cooperate in an investigation.

A pardon does remove, however, the risk of criminal liability associated with the pardoned behavior. It, therefore, removes a witness’ ability to plead the Fifth Amendment right not to subject yourself to criminal liability by disclosing facts to the government. Cheney avoided that problem with Libby by having Bush only commute his sentence, not pardon him outright.

With time running out on Bush’s ability to issue pardons, with statutes of limitation running, with memories and evidence going stale, and with the Democrats and Obama foreshadowing their complete unwillingness to look at past crimes, I think the sky’s the limit on Bush’s exercise of his pardon power.

I’ll have to look at the language in Garland because while you say what it says about pardons is dicta I’m not sure that’s the way he has been viewed Constitutionally.

Don’t have to. Right now, Bush is being VERY nice to Obama, in terms of staff cooperation up and down the line. Appointing someone like Holder as AG, who worked on the Rich pardon, sends the message that “we won’t be too rough on you,” without being precise. Holder won’t really say what he’ll do or not do about prosecutions until after Jan 20.

What is happening is a “gentleman’s agreement,” where unpleasantries needn’t be mentioned.

Bob in HI

A fewish things.

First, even in the dicta in Garland, the court starts making up limitations that are not expressed in the Constitution (cannot restore forfeited offices and property.

Next, when there is a power, there is usually a corollary in that branch to revoke a previous exercise of that power. For example, Congress can repeal earlier laws, courts can withdraw earlier decisions and rulings. Apparently the Bushies thought that new Presidents could revoke pardson issued by old Presidents. E.g., http://www.highbeam.com/doc/1G1-69741559.html

Next, I’m glad you gave the surrounding facts on Garland. One important item IMO is that they also found that the law in Garland was an unenforceable act of attainder. Attainder – visitng punishment, penalties, “enhanced interrogations” etc. on people with no prior trial convicting them of wrongdoing. ;) In any event, Garland is one of thousands of cases that demonstrate why you need to spell out the facts when you are doing legal analysis – and all that makes it even more interesting how often the OLC loyal Bushie memos fail to have a facts section – not a redacted section, but even a discussion of facts. Saying it is ok to torture a member of al-Qaeda who was involved in the plotting or execution of 9/11 is, whether you are for it or against it, a bit different than saying that it is ok to authorize 18 and 19 yo soldiers to torture anyone that gets sold to them by criminals and warlords. All that non-sequitor aside, dicta is dicta. It’s not what’s on the menu now.

Next, the Constitution is, at it’s heart, the contract between the people of the US and their government. In any contract interpretation, there are generally rules of interpretation that require a contract to be interpreted so as not to void, nullify or rob of meaning various parts of the contract. If the Constitution specifically disallows certain things, things such as attainder, warrantless searches and seizures, deprivations of due process, etc. then it would nullify and void those provisions, and totally rob them of meaning, to say that an outgoing President who has served two terms and is at the end of such service, can go through and grant pardons for violations of these contractual provisions, including violations committed pursuant to Presidential order. IOW, the original Constitutional safeguards, the bill of rights, and especially equal protection under the law – are all a nullity if a President is allowed to pick and choose those against whom he would like to commit attainder, torture, illegal searches, etc. – and then simply grant pardons to those who violate the Constitution pursuant to Presidential order. This concept would effect a complete nullification of the Constitution, and I think that to construe the Presidential pardon power appropriately, it cannot be allowed to nullify the constitution. If you look back at Ex Parte Milligan, there is language in there – dicta as well – to the effect that not even the President AND the Congress AND the Courts combined have the power and authority to violate the Constitution. What does allowing for the President to order such violations, then pardon them secretly or on his way out of office, do if not basically supplant the Constitution with the President’s determinations of when, where and how – and to whom – it should apply?

Impeach Bush and cut through all this bullshit…IIRC just starting the impeachment procedure would take away his pardoning powers!

“You want me to lay off of them for ‘doing their jobs,’ and what do I and the rest of the nation get in return? Pardons for your pals? I think not.

“You issue a bunch of pardons, and I will direct the AG to subpoena every damn one of your newly-pardoned buddies, and we’ll put every damn one of them on the witness stand. We’ll ask them to lay out in great detail the ways in which they subverted the law, obstructed attempts to overseee their work, and otherwise demonstrated their lack of concern for the constitution of the United States of America.

“And then we’ll call you to the stand, Mr. President, and do the same with you. It will be your chance to stand up, Mr. President, and tell the world how you directed these line employees to ignore the law.

“If you want to accuse me of running a pogram, I’ll give you the biggest microphone to do it, right there in front of the chair for the witness. Every camera in the country will be focused on that witness chair when you take your seat, hanging on your every word.”

Somehow, I don’t think Bush would care for that very much.

37 – I think not as much – bc they will be stamped “classified” and no one will know about them UNLESS the Obama crew pursues claims (which Obama has shown no inclination to do) AND ALSO challenge the pardons.

IMO, at most, Obama might reveal the existence of the pardons. Maybe. I doubt it though.

And those “classifications” will be bc of all the “secret stuff” you know. It brings to mind something from Jane Mayer’s book. She talks about a CIA officer who began using the “enhanced interrogations” as her own, personnel entertainment – jaunting off to watch torture just to make herself happy. She ended up with a reprimand that the torture (euphemism used) were not really for her personal entertainment. Tsk tsk. This is the same woman who set up the abduction into torture of German citizen Khalid el-Masri. But her name “can’t” be mentioned or released bc Mayer says she subsequently took a covert position.

Uh huh.

Convenient, that, eh? So el-Masri’s case gets kicked out of the courts for state secrets and the CIA has placed covert secrecy on all the actions of a person who the CIA itself had to reprimand for using torture as entertainment.

Pardons, crimes, victims (like the victim that a CIA officer had planted in an unmarked grave after his death by torture, again a story in Mayer’s book) – all kinds of things are and will be kept secret.

Jane a couple of flights upstairs

Well in ex parte Grossman the Court had this to say:

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment, rather than to a narrow and strained construction of the general powers of the President.

Interesting that you bring up bills of attainder and ex post facto laws, both prohibited under the Constitution. Attainder is when the legislature makes a specific individual’s or class of person’s prior conduct illegal, in the absence of a judicial proceeding. Ex post facto laws make criminal and impose liability on behavior that was not regarded as criminal when it was committed.

In the case of Bush II, we have the opposite. A legislature attempting to relieve a specific set of companies (Big Telco cooperators in Bush’s illegal spying) of liability for behavior that was criminal when it was done. We have a president, presumably, hoping to relieve a cohort of followers (his vice president and other makers of policy, if any) of liability for behavior that was also criminal when committed. Bush is likely to test the pardon power as hard as he’s tested the rest of the Constitution.

Oops, I meant Ian is a couple of flights upstairs

He will pardon like crazy because he is. He will do it for XMas.

Question if he pardons everyone then they can testify, no 5th (since for the pardon to apply the crime must be acknowledge – perhaps only if you are investigated as otherwise you don’t need to “invoke the power of your pardon”), no executive priv.

Only thing one should not overlook is the law in many ways is just a set of options to allow rich and powerful to skate while the same things will get poor and weak to jail. I am sadly betting on some backslaps and Obama letting them all skate. Sure a few show trials and grandstanding but hell JFK, MLK, RFK, Iran Contra, etc, etc and NOTHING.

65 – attainder itself is actually a sovereign imposing pains and punishments with no legal proceedings or due process. By the time that our constitution was written, even British monarchs had given up on the belief that they could go out and commit attainder with no cover or cloak and what they did was have parliment issue a Bill of Attainder, allowing the monarch to subject a person to pains, penalties, punishments etc. up to and including loss of life and defeasance of all property and title upon heirs, all with no due process or trial.

So the Constitution pretty much reaffirms that not only does our Executive not have the power of attainder in his own right, but our Congress is prohibited from passing any law or bill authorizing attainders. So my focus on all of that is from a torture perspective.

With respect to the telecom amnesty, I can’t help but believe that there is a damn good equal protection/equal benefit of the laws argument to be made in addition to the arguments regarding not being able to abrogate the Constitution by Executive/Legislative conspiracy to allow vioaltions of the fourth amendment by presidential actors to be given amnesty. To me, the best argument against the amnesty is an equal protection one. Congress didn’t bother to revoke or limit the provisions in FISA as to government eavesdropping without a FISA warrant – - instead, they carved out a group of Americans, those who the President and AG (and now a cast of 400 or so others IIRC, but back then it was Pres and AG) on their own and without judicial oversight decide should no not be protected by the FISA law, and gave amnesty to violations of the law against those persons.

So if you were eavesdropped on outside of “Teh Program” you are covered by the FISA protections for damages and the violator is subject to felony penalties, but if the President decides that as an American citizen, he doesn’t think you should have protection of the FISA law, then amnesty entails to all who violate. Secondary to the due process/FISA law argument, I would make the amnesty as abrogation of the 4th Amendment argument.

Bingo. I doubt Obama gives up any power – but will make what assurances he may with what he knows today. Gentlemen agreement.

That being said while Obama will need to leave some options open Bush will still need to cover his tracks since he can’t really trust Obama.

Again the art is what bullshit “wording” courts and investigators, etc allow people to get away with.

Just say “ipso facto ergo everyone is beyond reproach” does not mean spit. However if everyone plays along it starts to become precident and have meaning, or at the very least allow people to skip free.

64 – but that is a fact hypothetical not including secret pardons and not including a situation where the President is on his way out the door, such that impeachment is not a remedy. And still – that is a take on the competing powers of the presidency and judiciary, not on the limitations on power found in the Constitution and the voiding of those limitations.

His lawyers remember their names because they have been conviced of crimes that reach into the WH. They walked around the white house, they planned their crimes with at least Rove. RICO, etc.

Sure they had some crimes on the side, but that’s likely because what the hell if everyone is doing it.

Obama’s immunity vote was seeing a bill that was going a certain way and getting on the “center-right” side of things to get an uptick in “independent” support.

As I understand it, in England, the sovereign invoked attainder against personal enemies, by definition, those with wealth and stature enough to oppose him or compete with him. (Others, he outlawed, imprisoned or executed.) He confiscated their lands and title, and sometimes gave them back to a much humbled opponent or, after his awkward visit to the block or scaffold, to his heirs. Pour encourager les autres.

The power of attainder was one of the few “excesses” of executive and legislative power that exercised the Constitution’s drafters. They were among the most monied men in the country, those most likely to find their property forfeit to an executive or legislature beholden to their opponents.

Now, the lines of opposition seem to be drawn, as Dubya might say, between the haves, the have mores, and those who used to work for them.

One final point – we have not, before now (other than possibly the Nixon wiretaps) where Pardon (or amnesty, as per the Congressional legislation) had situations where there were indepenent causes of action, other than the “state’s interest” from the criminal prosecution, that were attempted to be voided by pardon/amnesty.

The Bush era, though, has a long series of Torture Victims Act claimants, Bivens act claimants, civil remedies for FISA felony claimants, etc. Pardon or amnesty as a tool to divest civil pursuit of claims is certainly *novel* IMOFWIW

First, the Court saw it as highly unlikely but they suggest the recourse prescribed by the Constitution, i.e. impeachment. The second part is that if there is a problem with the pardon power, the Constitution outlines how it may be changed and amended.

I’m with you; I’ll put my money on relatively few pardons. My impression has always been that Bush doesn’t give a damn about anyone but himself, and therefore will only pardon people to protect himself, with a few exceptions — the same people who’ve always been able to talk to him directly and convince him that what they want was really his idea all along. Rove and Cheney are prime examples.

I’m actually on the fence about whether Scooter will get a pardon. If he does, it will only be because Cheney went to bat for him.

I doubt he’ll issue a mass pardon for torture or eavesdropping. I don’t think he’s capable of thinking in such abstract terms, and between his absolute certainty he’s done nothing wrong, and his equal certainty that hanging the small fish out to dry will never result in his misdeeds being traced back to him, I suspect he will stick with his inflated perception of his “legacy” and do nothing that suggests any regrets.

76 – The court was talking about a conflict in powers between the court and the president – not talking about the powers retained to the people and the ability of any of the three branches to usurp those.

I am loving the conversation on this thread, and dread its fading into EPU-land.

Can we get LHP, Mary, and a few others to write an FDL Amicus brief for an ACLU suite against some of the Bush pardons that may be in the offing?

I want to see a revitalization of our Constitutional Balance of Powers doctrine, and a full restoration of Constitutional Principles that have been so badly shredded by the Bush-Cheney regime!

Bob in HI

“Or are you saying that if the president pardons person X for Ycrime and X is alter charged with Z crime and tries to assert the aprdopn as a defense, that the prosecution has the option to controvert that the aprdon applied to the new crime?”

That seems to me to be obvious. If a pardon was specific (say for acts that occurred during the interrogation of prisoners) it would not exempt for another act, such as embezzlement…or perjury.

This is why it is so critical that pardons be enunciated clearly as to their limits…who and what acts are covered. I’m firmly of the opinion that Congress CAN require a President to enunciate the crimes being pardoned and the class or individuals that the pardon applies to. They can require that the pardons be published (and not kept secret).

None of these acts restricts the Presidents capablility of giving pardons. No pardon that he wishes to award would be restricted…it is simply a reporting requirement that makes it easier for the Courts and prosecutors to avoid embroiling themselves in circumstances the might have a “secret pardon”.

Furthermore the issuance of a pardon should not interfere with the powers of the Congress to impeach individuals…and forbid them from holding future office.

In the Garland case I’m surprised that Congress didn’t take that avenue…impeachment. Judges have been impeached for “high crimes and misdemeanors”, so I would assume that a lawyer could be disbarred from practicing before FEDERAL Courts for the same or similar criteria. The President could certainly have barred prosecution from the Confederate veterans for crimes…but at the same time, Congress could have impeached individuals for those acts, and blocked their access to Federal Office henceforth.

And perjury would amount to a new crime, on that would not be covered by the pardon. Or the Congress could simply impeach and convict the perjurer (or if the crimes were revealed were so heinous) or facilitator of the crime…

…which while not having the impact of imprisonment, would at least permanently make the convicted an outcast from from any future Federal office, grant, contract, license, permit, lobbying post, etc.

They’d have to purge their lives of any Federal benefits…and so would companies that they work for.

And it would prevent these Neo-Cons and nincompoops out of government.

Amen!

Not a personal privilege

I don’t think that any of the powers the Constitution grants any federal officer were granted as personal prerogatives. Yes, the two purposes the pardon power serves:
1)to grant exceptions for exceptional cases in which justice is served if the legal results are set aside
2)to heal political divisions by withholding punishment form large numbers of people who chose the losing side of a political struggle

both require whoever is granted the power of the pardon to not have the decisions reviewed by the usual rule-setters and enforcers. The point of both purposes of the pardon power is that exceptions to the usual rules are sometimes good, even necessary, public policy.

But if it makes no sense to allow review of the content, exactly what exceptions to the usual rules the president chooses to make in serving these two public policy needs for the occasional exception, it would seem not just permissable, but necessary, for the courts to review these pardons for their intent, that they actually are attempts to grant such exceptions for the sake of the public good, rather than his private benefit. Were there a suspicion of bribery, for example, which the Constitution explicitly says a president might commit (so, please, no, “If the president does it, it cannot be wrong.” nonsense), the courts would have to look into the question of the intent, the purpose for which an official act, otherwise proper and lawful, was undertaken. If a federal officer was found to have done such an official act because he was bribed, rather than because he was making a good faith judgment about what best served the public good towards which all acts in office are supposed to be directed, that act would become unlawful. Such an official act found to be unlawful might, or might not, be invalidated by such a finding. A vote in Congress that passed by the one bribed vote, for example, might not be appropriate for being rendered invalid by a decision of the courts, because the legislature is free to reverse that law, if, upon the revelation that it had passed only by virtue of a bribed vote, it reconsiders the wisdom of that law, so no infringement of the legislative function by the court is necessary. But I can see no reason that a pardon obtained by bribery should be allowed to stand by the courts, because, unlike the law that Congress can reverse, there is no other power to set such an injustice right. If the director of the National Archives were to sell an original copy of the Constitution in exchange for a bribe, would the briber be allowed to retain the ill-gotten goods? How is this different?

But the scenario we are considering, that of Bush pardoning his subordinates for crimes in office that he had himself ordered them to, not only involves this element of self-interest, rather than the public interest, but adds to it the creation of a conflict with other law. Or, you could say that allowing a president to complete the loop of criminality, by immunizing his henchmen against the legal consequences of any crime imaginable he might order them to, is the very extreme of the service of self-interest over the public good that we would be allowing the president if we refused to allow the courts to review his pardons for their intent. It would be like giving the president the Ring of Gyges. We would be allowing the president to set himself above the Law, and for him to set his servants likewise above the law, and loose upon us. The kings of England never enjoyed such power in practice, and even those among them most inclined to absolutist pretensions, never had the audacity to claim such a thing even as a mere theory.

The idea that the Founders intended to make the president above the Law in giving him the humble power of the pardon is ludicrous. In every other stipulation of the Constitutionn, they gave us a republic. A president who can deputize his henchmen with licenses to kill, to commit acts of war, to withdraw money from the Treasury, or any other otherwise unlawful or unconstitutional act — and declare them and himself immune from all accountability to the Law — sets at naught every other provision of the founding document, and is clearly incompatible with any system of government except the most absolute monarchy.