~Kelly Karpenske
“Will that be the headline on January 19th, 2009? Before he leaves office, will President Bush use his pardoning power to save the members of his administration from legal action?”
Article II, Section 2 of the U.S. Constitution gives the president “Power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” A pardon removes both punishment and guilt.
The president’s power to grant amnesty and pardons is unlimited. Congress or the courts cannot block any individual reprieves or pardons. The Framers of the Constitution created the pardon power as having a narrow purpose in times of war and rebellion. Alexander Hamilton argued in the Federalist Papers No. 74, “In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the common wealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
The pardon power has been used as the Framers reasoned them for; George Washington pardoned leaders of the Whiskey Rebellion, and Andrew Johnson pardoned Confederate soldiers following the Civil War. In 20th century, Jimmy Carter pardoned those who had evaded service in the Vietnam War; however, it has also been used, as they did not foresee. A long succession of presidents has used the pardon power much more broadly. Bill Clinton is only the most recent president to use the pardon power to forgive a wide range of criminal offenses. Many more pardons have been controversial. Gerald Ford preemptively pardoned Richard Nixon for his actions in the Watergate Affair in 1974 for any crime he “may have committed.” George Bush’s 1992 pardons of six Reagan administration officials involved in the Iran-Contra Affair, including Defense Secretary Caspar Weinberger. Bill Clinton granted 395 pardons during his presidency, comparable in number to other recent presidents. However, of that total 140 were issued on his final day in office.
President Bush stands out in contrast to his predecessors. He has already denied more pardon and clemency petitions than any post-World War II president. In his first seven years in office, he rejected 5,966 requests, almost twice as many as Bill Clinton did in eight years, five times more than his father did in four years, and almost five times as many as Ronald Reagan did in eight years.
President George Bush and Vice President Dick Cheney stand accused of 39 grave and impeachable offenses, including war crimes, torture, warrant less wiretapping, and outing a covert CIA operative.
Most of these offenses are felonies for which Bush and Cheney can be criminally prosecuted after they leave office. But prosecutions will be impossible if Bush issues blanket pre-emptive pardons for Dick Cheney, Scooter Libby, other senior officials.
Senior intelligence officers are lobbying President Bush to issue pre-emptive pardons for intelligence officers who followed his orders in the torture of terrorism suspects, according to a former CIA officer. “He gave them the green light to fight tough,” the officer said. “The view of many in the intelligence community is that he should not leave them vulnerable to legal censure when he leaves.”
In addition to CIA and military officers, others could include David Addington and William Haynes.
Such a pardon would decrease the risk that any future administration might take on a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated a multitude of laws.
There is growing conjecture that Bush will issue pardons for the unlawful domestic surveillance program and torture program in his waning days in office. This pardon would be welcomed not only by his allies but some Democrats who have previously blocked any serious investigation into alleged crimes by the Administration. The pressures for pardons may be increasing with some Democrats publicly talking about serious investigations.
A “blanket pardon” would raise serious constitutional and criminal questions, though there was some model in the Kennedy and Carter administrations. One possibility being discussed is the use of a blanket pardon that would not individually name people but cover anyone associated with the unlawful programs.
Some legal analysts said Bush might be hesitant to issue such pardons because they could be seen as an unspoken admission of guilt.
“Before leaving office it is suspected that George W. Bush will issue a mass pardon, the largest collection of presidential pardons in American history. Bush will pardon Vice President Cheney, and a long list of officials involved in torture, eavesdropping, destruction of evidence, the CIA leak case and a range of potential crimes. On the destruction of evidence, disappearing e-mails, claims of executive privilege that most likely will be denied by the Supreme Court, false testimony to Congress the list goes on and on.”
There is an important point to this, often not recognized in official Washington during the Bush years, where the unthinkable becomes a way of life, and acts have been done that have never been done by an American president or administration.
He will want to protect all those in his administration. For eight years his administration has sought to work in secrecy, using executive privilege as a claim to prevent Congress and the Justice Department from investigating the members of his administration.
The presidents ratings are already low enough that he wont care who he angers before he leaves office.
Presidential pardon power is nearly unlimited under the Constitution. The Founding Fathers clearly anticipated a corrupt President might pardon his co-conspirators, and specified impeachment as the remedy.
James Madison, the father of the U.S. Constitution, claimed “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter [pardon] him, the House of Representatives can impeach him; they can remove him if found guilty.”
A post-inaugural impeachment would prohibit those impeached from ever holding federal office, either elected or appointed. Arguably, impeachment would also nullify pre-impeachment pardons and permit prosecutions. Finally, impeachment would tell future Presidents they cannot abuse their pardon power to put themselves above the law.
Meanwhile, Democrats are proposing yet another commission to investigate the program.
“However, even with a blanket pardon there is still risk of consequences for the Administration. Torture violates international law, domestic law, statutory law, customary law, American law, European law — the list goes on. Eavesdropping without court order violates a statute, FISA, that includes severe criminal penalties. If the courts ultimately conclude that these laws were broken, considering the number of individual violations, and the penalties for each violation, the potential sentencing liability for anyone convicted would be huge.”
There will be a huge legal debate about the ability of a president to issue pardons so sweeping in their language that they cover all these potential areas of legal liability, and very possibly, it cannot be done.
But will Bush attempt it? Here is a list of some possibilities:
Donald Rumsfeld, Scooter Libby, Alberto Gonzales, Karl Rove, John Yoo, and Dick Cheney
– Conrad Black (fraud and obstruction of justice)
– Jose Compean (illegal arrest of an alien)
– Gilmer Hernandez (civil rights violation).
– Michael Milken (securities and reporting violations) Application in.
– Julius Nasso (conspiracy, extortion)
– Tom Noe (illegal campaign contributions)
– O.Henry (embezzling bank funds)
– Leonard Pielter (double murder of FBI agents)
– George Ryan (corruption)
– David Safavian (lying to investigators)
– Richard Scrushy (corruption)
– Don Siegelman (corruption)
– Jeffrey Skilling (fraud, conspiracy, insider trading)
– Ted Stevens (violation of ethics laws)
If you think the president should be held accountable for his actions and that there is possibility that congress should impeach him, write your congress man, you have more influence than you might think.
Election 2008: UC Denver Political Science 
I wouldn’t put it past George W. Bush to hand out pardons before he left office. His administration has already violated so many laws that I would imagine that he would attempt to protect those involved in the violations. I would be very surprised though if an impeachment occurred, as many people have discussed it before, and yet no actions have been taken. Dennis Kucinich had introduced a resolution to impeach George Bush back in June of 2008 and the resolution was voted to be sent to a committee which froze the resolution. He has also previously tried to impeach Vice President Dick Cheney in 2007 but that was also followed by no action when sent to a committee. Although I think impeaching the President is the right thing to do, I would be amazed to see it happen.
America’s impeachment process is laughable. If our government was parliamentary based, Bush II would have been out of office years ago. Something must be done about this.
The more I think about, the more I believe that impeachment has always been off the table concerning Bush II because American leaders do not want the country to look weak. Whenever you take the executive out of office it shows a sign of weakness among the nation’s leadership (although I do not believe that it shows a sign of the countries weakness). Our government not impeaching Bush II has shown the world that we approve of his actions. Approval rates mean crap anywhere else. All the world sees is that he is still in office. It is no wonder that parliamentary countries do not support us anymore.
Yet we will impeach Clinton because he lied under oath about something that was not our business? Figure it out America!
Perjury is a felony and if anyone needs to be held accountable to it, regardless of the actual lie being told, is the president of the United States. That said the idea that a president with as low of approval numbers as W gives unpopular pardons to his friends on his last day in office doesn’t seem a stretch to me at all.
What more are we going to do to him? Maybe like him less? In my opinion he will already go down as one of the worst in history so anything that he does now couldn’t possibly tarnish that. (or polish it? I’m not sure how well that metaphor fits in his situation.)
I think that there were probably a few actions he has taken, wire taps, that are impeachable offenses. The problem was that for most of his presidency the senate was controlled by the republicans and because they are the ones who would have tried him it never would have happened.
Now the problem that I have with my last statement is that if a President commits a crime that is grievous enough to remove him from office partisan politics should have absolutely nothing to do with the proceedings, but that is not the world that we live in. The only way that something could have happened is if there was a HUGE outcry from the people about the atrocities that he had committed. This would have forced the slimy politicians to act regardless of their allegiances to their party.
Again let it be stated that I do think that W has done things that deserved removal from office. That also includes the part about the public outcry, which the public did not do. I think we are a nation of complacency and we deserve what we get, especially when we do nothing to stop it.
A very interesting and important post, Kelly. I was especially interested to learn that Bush has denied more clemency petitions than any other president; that is a new lesson for me. It speaks to the Texan style of justice perhaps–not a lot of leniency?
On the list of possible pardons, I find Leonard Peltier’s name rather odd. This Native American activist is a darling of the left, an old 60s-70s era radical, and there is NO way that a Republican would pardon someone seen by the mainstream of their party as a Bill Ayers type. Among the other possibilities, I find it likely that the INS agents being tried and imprisoned for illegal arrest (and abuse?) of an undocumented alien (who was, I believe, a violent drug runner) to be a likely case. It’s easy to pardon police for overly harsh arrests of drug runners…and it fits overall GOP pro-policing profile.
There will be no impeachment, nor later trial for either Bush or Cheney. Obviously impeachment is moot now, and as for trials after the fact for crimes by people such as Cheney–that is just too politically dangerous for the Dems. When Cheney is out of office, the nation will read the situation as case closed–and won’t be on board in terms of understanding the reasons for trying Cheney after the fact (or Bush), and after they have lost. They will read it as a politically distracting witch hunt (and it definitely would be politically distracting, in terms of absorbing national energies and sapping attention from such things as health care reform) and will punish the Dems if they lead such a charge. Already, half the nation (the Repubs) would line up in steely anger against any attempt to try their former prez and veep, and it not to predict that a good percentage of the independents and moderate Dems would join in this anger against the Dems. Nothing good could come of it, but a long and bitter battle, resulting in loss of Dem energy and popularity.
Look what happened to the GOP when they tried to impeach Clinton (for an admittedly lesser crime). they lost popularity and all their momentum following the historic 1994 elections.
Finally, this post has interesting quotes and facts, but no links at all to outside sources. It does not open doors for further exploration to readers, and appears to draw on sources without citation. That can be plagiarism, whether it is a net post or a formal paper–so be very careful to cite all sources in any future blog or internet writing.
Come on guys, this is a power legally retained by the President. Bush Jr. will not be the first nor the last President to use his Pardon power. For all the bi-partisan bickering this is a common thread throughout history regardless of political party.
Tony you frame this like a sneaky and/or illegal, or even unusual activity. It is NOT!
For all the international law and even Constitutional law that Bush circumvented during his reign we are focusing on something that is LEGAL. I agree that Bush II probably earned an impeachment, but the way our country is run he escaped that fate because his party controlled impeachment proceedings.
my idea of the headline Jan 19, 2009
“OBAMESSIAH!”
I also don’t think that the Obama Administration is going to spend a lot of time trying to throw these people in the slammer for the misdeeds. They have bigger and scarier fish to fry. I do believe that Bush might send out some pardons anyway, being nervous about a Democrat controlled Justice Department. The Bush Administration probably does not know what it is like to do things outside of partisan and personal glorification, so they may not understand that Obama’s group is more interested in solving problems than chopping off heads.
One interesting fact is that Bush can not pardon himself. So if their was ever any evidence of truly heinous activity that just spit on the Constitution, he might just stand alone. Even then, I doubt he would be pursued legally. It is better to keep him a living James Buchanan than a prosecuted martyr.