Pardon Me, Congress?

Published on Afterdowningstreet.org, by David Swanson, 24 October, 2008.

Jerry Seib, executive Washington editor of The Wall Street Journal said on the Diane Rehm Show on NPR last week that he expects Bush, Cheney, and their subordinates to be prosecuted for torture. This expectation is spreading.

As we approach W’s last day in office, on which I’m willing to bet you he issues some sweeping pardons of crimes he himself authorized, an act already recommended to him by various voices in the corporate media, we also approach, of course, the dates before and/or after those pardons on which congressional committees may hold hearings to whine about the matter.

I actually think Congress should hold hearings, and hold them as soon as possible, but not just to speechify, rather to take serious steps to prevent something brand new in American government: a president pardoning himself and/or pardoning his subordinates for crimes he instructed them to commit, crimes for which they have, in most cases, not yet even been charged, much less convicted and sentenced.

The unconstitutionality of self pardons is discussed at length in “Pardon Me? The Constitutional Case Against Presidential Self-Pardons,” by Brian C. Kalt in the Yale Law Journal, December 1, 1996, on Jstor.org
Kalt gives an argument based on original intent and the English history that informs it, text and structure, case law, and the broader precedential principles of self-judging and the rule of law. I would supplement Kalt’s section on original intent with a couple of pieces of information he overlooks …

… The Government Reform transcript makes clear that the Washington bureaucracy has all variety of concern over the process of issuing pardons, over requests coming a certain number of years after sentences have been served, over input being received from prosecutors, and so forth. Congressman Bob Barr goes so far as to suggest that pardons issued by Clinton are invalid because he didn’t follow proper procedures, and because he speedily pardoned a long list of people without properly explaining himself to the public. Of course, no one imagines that Bush will follow any procedures at all or explain himself to anyone, but Barr’s argument may be worth resurrecting nonetheless. Congressman Burton himself asserted during the hearing that “if a Republican President had presided over a pardon process that resembled the chaotic mess that seemingly characterized the final days of the Clinton administration, I would be outraged and would criticize it.” Get ready to do more than criticize, Congressman.

While pardons cannot slow down civil, state, local, international, or foreign prosecutions, they can completely block federal prosecution. An ideal outcome right now would be for president-elect Obama to oppose pardons, because it would move him in the direction of prosecuting. He will take his cue from Congress, which in theory represents the will of we, the people. (full text).

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