PARDON ME
I guess bailing out the banks was not enough. Because now he wants to bail out himself.
No kidding.
There are rumors flying around Washington that outgoing President Bush plans to issue "blanket pardons" to preclude the prosecution of anyone for crimes arising out of acts of torture (euphemistically, but falsely, called "enhanced interrogation techniques") authorized by his Administration. According to reports, the incoming Obama team, torn between the notion that violators should be prosecuted now to the fullest extent of the law on the one hand or that prosecutions should be deferred pending the creation of a Congressionally sanctioned non-partisan commission to investigate alleged abuses on the other, is now faced with the unpleasant prospect that any decision made by it might, as it were, be moot even before it is made.
But here's the beauty part. In issuing these blanket pardons, President Bush will even pardon himself.
Wow. I guess we were right to forgive the Supreme Court eight years ago. Counting on it (forgiveness, that is), they ignored two hundred plus years of precedent to give us the pardoned reality of an unelected President. And eight years later, he gets to ignore two hundred plus years of precedent to give us the unelected reality of a self-pardoned President. Move over Jerry Ford. You've just been usurped. You too Mr. Clinton (you pardon amateur).
In his 62 years, Bush's habit of "leaving messes for others to clean up" has been raised to an art form. As a college prankster and young adult, his family routinely intervened to save W from himself. As a would-be entrepreneur running businesses into the ground with other people's money, he regularly rang up enormous losses for his investors. As Governor of Texas, Bush left his state in a financial hole. And now as President, he leaves us despised abroad, and at home . . . broke.
This latest gambit, however, clearly takes the cake.
From the moment he assumed office, Bush II's was an in your face Presidency. I couldn't tell if it was inherent in his personality or just the predictable consequence of feared illegitimacy in the wake of having been shoehorned into the White House by five people who got to vote twice. Whatever the source, the Bushies regularly bulldozed their way to victory, from tax cuts for the rich that sank the surplus to a war of choice sold on false pretenses. Whether it was covering up the authorization of torture in the war on terror or moving the Supreme Court hard to the right, they literally never gave an inch.
And they are going out the same way they came in.
If he follows through on blanket pardons -- one for himself included -- President Bush won't be leaving a mess for Obama, he'll be sweeping that mess under the most impregnable of historic rugs. We will never know the full truth about torture . . . or WMD . . . or Gitmo. There will be no accountability. And Dick Cheney's dark side will remain forever hidden.
Can we do anything about this?
The short answer is (pace Sarah Palin) . . . You betcha'.
The President's power to pardon is plenary and unreviewable. There is no recourse against a chief executive who exercises that power, at least none if the goal is to reverse the pardon. But that doesn't mean there is no recourse against Bush himself. He is President for sixty seven more days. He can still be impeached. More importantly, the new Congress will be sworn in on January 1, 2009. For nineteen days, therefore, Bush will be President while the Democrats enjoy enormous majorities in the House of Representatives and numbers somewhere between six and eight votes short of a two-thirds majority in the Senate. As we know from recent history, it takes a simple majority for the House to impeach and a two thirds majority for the Senate to convict and remove a President following a bill of impeachment.
What would be the grounds for impeachment? The Constitutional standard is simple. Presidents are impeachable for "high crimes and misdemeanors." My guess is that the authorization of torture qualifies; at the very least it trumps lying about oral sex in the oval office. Between now and Inauguration Day, we obviously do not have enough time to subpoena witnesses and gather evidence sufficient to prove that Bush actually did this. But the reality is we need not do so.
Because President Bush will have admitted his guilt.
When President Ford pardoned Richard Nixon, Ford made much of the fact that acceptance of a pardon constitutes acknowledgment of guilt. When challenged, Ford regularly pulled from his pocket excerpts he kept from a Supreme Court decision which said exactly this. Let's test that proposition. If Bush pardons himself, we can impeach and convict him on the theory that the pardon is an admission. And we could literally do all this in hours.
As for the need for six to eight Republican Senators to get the two thirds needed to convict, 2010 is an election year as well, and of the thirty five seats up that year, a disproportionate number are again held by Republicans. Look for the votes in that group and start with Pennsylvania's Arlen Spector. Pennsylvania went hard blue last week and hates W. Spector knows torture is illegal and was rolled by the conservative right when he chaired the Senate Judiciary Committee. When motivated by a grudge, one Senator can get a lot done; when motivated by a principled grudge, he or she can move mountains . . . or at least seven votes.
So, go ahead Mr. President.
Make our day.
Posts
Two points.
ReplyDelete(1) If he does so, he will stain himself, his entire coterie, and the Republican party in a fashion that no amount of time will ever remove. Yes, yes, it is hard to see how his awful administration would ever be reviewed by history with any sense of forgiveness. Bush's action in this direction would remove that possibility completely.
(2) Though I am not a lawyer, it would seem to me that a blanket pardon only removes the threat of prosecution for the crimes committed before the pardon. With the new Congress in session, would there be any reason why such a pardon would prevent the Congress from conducting a probing investigation? Since there is no possibility that the administration's war criminals could be prosecuted for their criminal actions per se, they would not be able to plead self-incrimination as a reason to withhold testimony. Thus, failure to respond to Congressional inquiry would, I'd think, result in possible legal jeopardy for contempt if they failed to testify and/or perjury if they decided to lie. And, with a Justice Dept. doing its proper work, there would be a prosecution on a Congressional finding like contempt or perjury.
What do you think?
Vinny
Vinny:
ReplyDeleteA pardon cannot stop an investigation by Congress, nor can it shield recipients from the consequences of later perjury or contempt. To that extent, therefore, your hunch that a pardon does not cripple the Congress going forward is correct. My fear, however, is that Congress will not have the appetite for such an inquiry (which is partly the reason why some are proposing a non or bi-partisan commission), wanting instead to focus on the economy and, generally speaking, to move on. Bush, moreover, is counting on this, his assumption being that he will take his lumps in the form of a further hit to his approval ratings up front (whioh, given how low they are, is really beside the point)and that over time the desire to go after him will simply dissipate. The impeachment I propose overcomes Congress's reluctance to spend time engaging on these issues (I really think this can be done in hours; if necessary, on the morning of January 20)and sanctins Bush immediately and fully.
People should also know that this is my response to the prospect of a self pardon, and that I view it as much as a political response as I do a legal one. On the legal side, there are those who argue that sef-pardons are not constitutional. See Note, "Pardon Me?: The Constitutional Case Against Presidential Sepf-Pardons," 106 Yale Law Journal 779(December 1996).
Neil