FEIN: Bush the pardoner's tale

By Bruce Fein | Tuesday, December 2, 2008

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COMMENTARY:

President George W. Bush will be sorely tempted to pardon himself, Vice President Dick Cheney, his inner political and national security circles, and others for complicity in torture, illegal surveillance, perjury, obstruction of justice, or contempt of Congress.

The suspected crimes relate to waterboarding; the CIA's destruction of interrogation videotapes; extraordinary rendition to countries with known histories of torture; Foreign Intelligence Surveillance Act violations for five years; flouting congressional subpoenas for testimony or documents; and, incredible statements from then-Attorney General Alberto Gonzales about the firings of nine United States attorneys. The seriousness of the crimes is enhanced because alleged or suspected perpetrators are or were high-level government officials.

Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States (1928): "In a government of law, the existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy."

Brandeis' teaching justified the impeachment of President Clinton for unrepentant sworn untruths before both a federal judge and federal grand jury and obstruction of justice.

If President Bush yields to temptation, he could summon in his defense other unseemly presidential pardons to benefit political friends or financial benefactors or to avoid presidential embarrassment or worse. President Gerald R. Ford pardoned former President Richard M. Nixon for Watergate and related crimes for which Nixon remained impenitent. President Clinton pardoned his CIA Director John Deutch. He pardoned his Housing Secretary Henry Cisneros. And he pardoned his financial sugar daddy, Marc Rich, while the latter was luxuriating in Switzerland while escaping a prosecution for income tax evasion. President George H.W. Bush, the incumbent's father, pardoned Elliott Abrams, Duane R. Clarridge, Alan Fiers, Clair George, Robert C. McFarlane and Caspar Weinberger for Iran-Contra connected crimes in which the president himself was allegedly implicated.

The Founding Fathers expected that pardon abuses would be deterred by presidential impeachments. During the Constitutional Convention, George Mason worried that a president might use the pardon power to evade rather than achieve justice by "pardon[ing] crimes which were advised by himself," or before formal accusation "to stop inquiry and prevent detection." But James Madison, father of the Constitution, answered that the constitutional deterrent or remedy would be impeachment by the House and conviction by the Senate: "If the president be connected, in any suspicious manner, with any person, and there be grounds [to] believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty." Later as a member of Congress, Madison underscored that a conspicuous difference between the president and the British monarch was that the former would be subject to impeachment for pardon abuses.

But House Speaker Nancy Pelosi, California Democrat, has taken impeachment off the table for Mr. Bush. A far less drastic constitutional measure is available to Congress, however, to deter pardon abuses in the waning weeks of his presidency: namely, a statute that compels the president to testify fully under oath before the House and Senate Judiciary Committees to justify pardons for a designated class of former or current high-level executive branch officials. Sunshine is the best disinfectant. The proposed legislation finds a strong precedent in President Ford's Sept. 8, 1974, testimony under oath before a House Judiciary subcommittee to explain the Nixon pardon. The chief difference is that Ford volunteered to testify. He was not compelled.

Article I, section 8, clause 18, nevertheless, empowers Congress to oversee presidential pardons if their legal effect is undisturbed. The Supreme Court explained in Ex Parte Garland (1866) that," [a] pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense." Pardons may be granted before any formal accusation, as in the Nixon pardon.

The proposed statute would avoid diluting, controlling or limiting the exercise of the pardon power. Its legitimate purpose would be to make a class of presidential pardons demonstrably subject to abuse more accountable to the public and to history.

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates, Inc. and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."

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