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.

…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!

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.

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

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.

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

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.