Former vice presidential chief of staff Scooter Libby, whose 30-month prison sentence Bush commuted last year. (AP)

The time for a national conversation on pardons is before, not after, they're granted
ASK THIS | June 11, 2008

If President Bush pardons members of his own administration in a blatant attempt to avoid judicial review, what would the consequences be to his legacy -- and to the country? Also: Bush's longterm effect on the judiciary. Part three of a five-part series on questions for the twilight of the Bush era.

By Dan Froomkin
froomkin@niemanwatchdog.org

(Also see part one of this series, Do we really expect the Bushies to go quietly; and part two, Midnight rulemaking, last-minute hires and executive fiats.)

A president’s power to pardon is vested in Article 2, Section 2 of the Constitution, which says “he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” So he can pardon anyone, even conceivably himself. It’s a power that cannot be taken away or even limited, and there’s no way to take a pardon back once it's granted. But if there aren’t any legal limits, are there moral ones? The time for a national conversation on such issues is before pardons are issued, not after.

Q. Are there any pardons that would be out of line for the president to grant? What about blanket pardons or amnesty covering anyone in his administration?

Bush could conceivably say something to the effect that anyone involved in the creation or implementation of the CIA's interrogation program, or the Defense Department's treatment of detainees, “is hereby pardoned from any criminal charges that might be brought against him or her for their participation” etc. But wouldn’t such a pardon – so clearly intended to stymie future investigations and accountability – be an insupportable affront to the rule of law?

Q. Would a full pardon for Scooter Libby be blatantly hypocritical and self-serving?

When Bush decided last July to commute Libby’s 30-month prison sentence for perjury and obstruction of justice in the CIA leak case, he said in his statement: “I respect the jury's verdict.” He added: “My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby.”

The next day, he was asked if he was ruling out an eventual full pardon. He responded: “I thought that the jury verdict should stand. I felt the punishment was severe, so I made a decision that would commute his sentence, but leave in place a serious fine and probation.” But then he added: “As to the future, I rule nothing in or nothing out.”

In my July 3, 2007, washingtonpost.com column, I called Bush’s commutation of Libby’s sentence “Obstruction of Justice, Continued.” And U.S. District Court Reggie B. Walton recently pointed out that his sentence for Libby was at the low end of the federal guidelines and that Bush’s decision to commute the sentence fed some people's notion that justice isn't equal. A pardon would only exacerbate both of these critiques.

Establishing some sort of consensus on what sorts of pardons would irretrievably tarnish Bush’s (admittedly already badly stained) legacy might at least give him pause.

The Courts

The most significant and powerful way in which Bush’s legacy will outlive his presidency, of course, is through his Supreme Court nominations. Justice Samuel Alito and Chief Justice John Roberts have noticeably tilted the court, hugely increasing for years to come the likelihood of decisions sympathetic to the Bush worldview on such issues as civil rights and voting rights, executive power, abortion, capital punishment, affirmative action, and the like.

Bush appointees have had a significant effect at the appeals court and district court level as well. But there are many appointments currently stalled on Capitol Hill by Democrats who are hoping for a Democratic president.

Q. Will Bush make one last attempt to install conservatives in key judicial positions?

Gerald F. Seib recently reported in the Wall Street Journal that social conservatives such as J.C. Willke, president of the antiabortion Life Issues Institute and former head of the National Right to Life Committee, consider it a top priority for Bush to compel the Senate to vote on the federal judges he has nominated: “Mr. Bush ought to instruct Republicans in the Senate 'simply to close up shop until this constitutionally correct set of people is given a shot at a vote,' Dr. Willke said. 'And he's done nothing.'"

Entrenchment, the Series:

Part One: Do we really expect the Bushies to go quietly?
Part Two: Midnight rulemaking, last-minute hires and executive fiats
Part Three: The time for a national conversation on pardons is before, not after, they're granted
Part Four: What's the vice president up to these days?
Part Five: How far will Bush loyalists go to help McCain win?

Dan Froomkin is the deputy editor of the Nieman Watchdog Project. He is also Washington Bureau Chief for the Huffington Post. E-mail: froomkin@niemanwatchdog.org

Comments

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Posted by Greg Panfile 06/11/2008, 07:01 PM I think there is something very naive about raising abstractions about the law and so on in this case. If, for example, waterboarding is torture and illegal, then the President, Vice President, and much of the Justice Department of the time are liable for serious criminal felony prosecutions in the US, not to mention internationally. To not pardon himself, Cheney, Yoo, Rumsfeld, Gonzalez, and probably dozens of other people would be to put their very freedom in the hands of judges, possibly after an election where their party was soundly defeated. This leaves aside possible illegalities in the Plame case, extraordinary renditions, the US attorney firings, domestic spying, and so on. It is inconceivable to me that Bush leaves office without pardoning himself, Cheney, and many others for just about anything and everything. Any perceived subversion of the rule of law and other niceties will be addressed, if at all, under the cover of protecting America from terrorists, dismissed, ignored. And given that there will be no open impeachment proceedings against any of the players, the pardons will be legal and that will be that. The Constitution, physical violence, integrity, nothing has stopped this man in the past... nothing will in the future. Look for a lot of them to have to be very careful where they travel internationally in the future, though... many of them may be indictable under international law for war crimes, especially when more facts come out after they leave office.

A knighthood would be nice... Posted by Bukko in Australia 06/11/2008, 10:21 PM Dan, you're a noble reporter, one of the few honest voices at your other gig on the Post> But to even ask whether there would be any Bush pardons that would be so blatantly self-serving that they would cross the line -- how naive is THAT? I realise you're not naive, and that to express massively scornful cynicism like I do would get in the way of your message, so you're excused. But in analysing the actions of the Bush Crime Family, figuring out the most devious, cynical option ALWAYS shows you what they're going to do. OF COURSE BUSH IS GOING TO PARDON EVERYONE FOR EVERYTHING RIGHT BEFORE HE SLIMES OUT THE WHITE HOUSE DOOR! One last giant "Eff you" to the 75% of the American people who detest him. How could he do anything less? It's the perfect way to shut off any investigations of the Cheney Administration's massive crimes, especially with a Congress of Cowards who didn't have the guts to dog him while he was still committing the crimes. (Kucinich, Waxman and Wexler excepted, of course.) Even if some future Truth and Justice Commisson like they had in South Africa tries to unearth the evil, those reich-wing judges that Bush and his daddy installed will block it. "Unconstitutional," they'll say. "We're strict constructionists, and it says right in the Constitution that the President can pardon anyone he wants to. So your attempt to get justice is illegal." On the bright side, the wave of revulsion that will occur when this miserable criminal pardons everyone will lead to a Constitutional amendment that will take away the President's pardon power, or at least allow Congress to override pardons. It will reverse some of Rove and Cheney's moves to turn the president into a king. And I'm still hoping for a collapse of the United States that will overturn the present corrupted form of government, so that some new government will throw Bush, Cheney et. al. in prison. (Maybe then I can move back to the U.S.) Failing that, remember what happened to Anastasio Somoza Jr.???

Human Being Posted by Dan McGrath 06/11/2008, 11:31 PM I have a question and a comment. 1) Can the President pardon himself? 2) It would be a good idea to impeach him before he gets the chance to pardon anyone!

Posted by AussieSheila 06/11/2008, 11:47 PM At least Bush can't pardon people for offenses under International Law (eg torture).

Posted by marc 06/12/2008, 01:13 AM You've forgotten that for legal purposes corporations are treated as citizens. The telecoms will get a pardon for illegal wire taps. Blackwater will be pardoned for slaughtering countless Iraqis and tax evasion. Halliburton, Bechtel, Flour, Dyncorp and hundreds maybe thousands of war profiteers will be pardoned for systematic fraud and abuse. Submit a comment - Jump to top of list