Would Bush consider ‘pre-emptive pardons’? Is that even legal?

July 22, 2008

George W. Bush has been exceedingly stingy when it comes to presidential pardons and commutations, issuing fewer than any modern president. But as Bush’s presidency winds down, there’s some talk about the president using his powers to help conceal some of the administration’s own transgressions.

As the administration wrestles with the cascade of petitions, some lawyers and law professors are raising a related question: Will Mr. Bush grant pre-emptive pardons to officials involved in controversial counterterrorism programs?

Such a pardon would reduce the risk that a future administration might undertake a criminal investigation of operatives or policy makers involved in programs that administration lawyers have said were legal but that critics say violated laws regarding torture and surveillance.

Some legal analysts said Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt. But several members of the conservative legal community in Washington said in interviews that they hoped Mr. Bush would issue such pardons — whether or not anyone made a specific request for one. They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.

There are two angles to consider here: whether the White House would do this and whether the White House could do this.

On the prior, the Bush gang isn’t saying much. The NYT asked the White House about whether “pre-emptive pardons” — clearing people of legal responsibility before they even face charges — are on the table. The Times reported, “Emily Lawrimore, a White House spokeswoman, would not say whether the administration was considering pre-emptive pardons, nor whether it would rule them out.”

On the latter, is this even a legal option? Does the president even have the authority to pardon someone who isn’t even facing criminal charges?

Apparently, he can.

In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time — regardless of whether charges have even been filed. […]

While pre-emptive pardons remain very rare, there are a few notable exceptions. Perhaps the most famous presidential pardon of all time occurred before any charges were filed. Gerald Ford’s pardon of Richard Nixon absolved the former president of “all offenses against the United States which he … has committed or may have committed or taken part in” between the date of his inauguration in 1969 and his resignation in August 1974. In other cases, presidents have pardoned individuals after criminal proceedings have begun but before a judgment has been handed down. In late 1992, less than a month before leaving office, President George H.W. Bush pardoned former Defense Secretary Caspar Weinberger, who had been indicted earlier that year on perjury charges surrounding the Iran-Contra affair. (A lawyer for Roger Clemens’ former trainer Brian McNamee claimed the pitcher might receive a similar pardon from Bush if he were ever indicted.) In addition, broad presidential amnesties — like the one President Carter issued to those who had avoided the draft during the Vietnam War — are essentially pre-emptive pardons issued to a large group of individuals.

If someone hasn’t yet been charged with a crime, how does the president know what to pardon them for? As in Nixon’s case, President Bush could issue a pardon that applies generally to any crimes that may have been committed within a certain range of dates. More likely, a pardon could apply only to actions surrounding a single policy or place — say, the detention or interrogation of suspected al-Qaida members.

Given this, I’d be surprised if Bush didn’t take advantage of this power and extend pre-emptive pardons to, well, pretty much everyone who ever worked for him.

When has legality — or lack thereof — ever been a consideration with these people?

  • There are two angles to consider here: whether the White House would do this and whether the White House could do this.

    Remember that Bush’s view of executive power during a time of war (which is perpetual btw according to bush) is simply this:

    If the President acts, such action, by definition, is LEGAL.

  • Ford’s pardon of Nixon of set a precedent for pre-emptive pardons. If there wasn’t a legality problem with that, why would there be now?

  • I could see Bush being so concerned about his own legacy, that giving blanket pardons would ruin whatever hope he had of one. I see him throwing most of his loyalist under the bus.

  • They said people who carried out the president’s orders should not be exposed even to the risk of an investigation and expensive legal bills.

    Say, how did that work out in Nuremberg for German’s that said they were just following orders? It is clearly stated in the military code of justice that you are not supposed to obey an illegal command!

  • “The president should pre-empt any long-term investigations,” said Victoria Toensing, who was a Justice Department counterterrorism official in the Reagan administration. “If we don’t protect these people who are proceeding in good faith, no one will ever take chances.”

    I’m pretty sure Victoria Toensing would like to see all the Plame Outing criminals pardoned. After all, they were all just acting in “good faith”.

  • Since Bush would essentially be pardoning co-conspirators, the legality of these pardons could be brought into question in court, however the Robertson Supreme Court is sure to take no issue with that.

    Bush may be printing his “get out of jail free” cards already, but Radovan Karadzic, the bastard responsible for the bit of inhumanity known as Bosnia, was just arrested and will be facing justice in The Hague. Even with a pardon by US law, there would be hope that an international tribunal would still sit in judgment of him. Not likely, but it gives one hope.

  • There’s nothing conservative about thinking that those who follow illegal orders should not be prosecuted. I wish the radicals would be labeled as such.

  • Question: If Bush pardons someone, and they somehow get nabbed and put on trial in the Hague, does the pardon get them out of trouble?

    I’m thinking a lot of Bushies won’t be doing a lot of international travelling after January 2009.

  • Remember that Bush isn’t running anything, his handlers are. Bush may care about his legacy but his handlers will never allow any of the faithful to go down a (and possibly rat out the lot). Not gonna happen…legacy or no.

  • In some ways, a pardon could actually help – it removes the ability of an individual to refuse to testify based on the 5th Amendment. And it wouldn’t shield them from charges for lying to investigators.

    At the end of this, I’m far more concerned with getting all the facts out and exposing the travesties so they don’t re-occur, than I am with putting cretins like Addington in jail.

  • We really need a constitutional amendment limiting the pardon power, preventing presidents from pardoning members of their own administration, and eliminating the pardon power completely during the period between the presidential election and the inauguration of a new president (to prevent a lame-duck president from issuing pardons during a time that evades electoral accountability).

    One reason we have this problem is that the founders couldn’t conceive of a situation in which a president would openly flout the law and congress would fail to impeach (thanks, Nancy). Of course they also couldn’t conceive of the idea that much of the congress would consist of theocratic authoritarians willing to go to any lengths to create and defend a presidential dictatorship.

  • BushCo’s MO since election day, 2000, has been, “so what are you going to do about it?”

    I see no reason to think that will change. “Legal” is whatever Bush can rig, or lie about, or shove down our throats. Thanks to our disloyal opposition, that covers just about everything.

  • I foresee a lot of unexplained deaths and money transfers prior to these pardons. If they know the pardons are coming, why not take advantage of them.

    “I pardon everyone in my administration for any offenses they committed or may have committed or taken part in between January 2001-January 2009.”

    Of course, this would set precendent for every president that followed. Yes?

  • The ICC is specifically used if the primary location cannot or will not prosecute.

    And you’re correct. I see no international travel in many Bushie futures.

  • I just hope that our next President and Attorney General will be of the mind that the granting and acceptance of a pardon can be an overt act in furtherance of a criminal conspiracy. When a pardon is used to cover up a crime, that’s how it should be viewed, meaning that the pardon, while it makes it impossible to prosecute for the underlying crimes, itself gives rise to new criminal conspiracy charges. This is, as far as I know, within the letter of the law, which doesn’t require an overt act in furtherance of criminal conspiracy to be an illegal act in furtherance of criminal conspiracy in order to give rise to conspiracy charges.

  • Yes, perfectly legal, and perfectly heinous.

    And jimBOB is (as usual) right; presidential pardoning power is out of control and the founders couldn’t have anticipated this level of moral bankruptcy.

  • Bush has to do it. He has to pardon himself too. That’ll be a first, and set quite a precedent. That’s the only way all the crimes committed by his thugocracy that we don’t even know about can be kept quiet. We probably don’t even know the half of what they’ve done, and may never. Unless premptive pardons are granted there’s a good chance the rats will start ratting on each other to save their own asses.

    Let’s face it, the rule of law in this country – to the extent it ever existed – is now toast. From now on if you have power you are immune from any consequences because ‘you took orders’. Bush’s pardons will put the final nail in an already pretty well sealed coffin.

  • The fact that not a single person in Congress has marched their lame ass down the Pentagon and demanded surveilance video from 9/11 showing absolutely nothing buzzing the lawn at 400mph w/o touching it and disappearing into a window means Bush can do whatever he wants, whenever he wants, w/ video and photos plastered all over youtube proving he’s a murdering liar – and nobody will ever give a sh*t.

    Pardon away. Suspend the elections. Declare martial law. Nobody will ever give a sh*t.

  • There’s a precedent here that everyone seems to be missing, in that Nixon didn’t pardon himself—Ford did.

    And in ex parte Garland, the lawyer in question, A. H. Garland, petitioned on the grounds that the law preventing him from practicing law was a bill of attainder and an ex post facto law (there had been no law against ex-Confederates practicing law, prior to Congress enacting the law in January, 1865).

    In the case of the Bush administration, the individuals seeking preemptive pardons have committed crimes in the President’s name. These acts were crimes prior to their commission, thus the claim of ex post facto will, of course, be indefensible.

    Furthermore, one needs to weigh the value of any pardon issued by Bush, if that pardon can be construed as an act within and of itself to intentionally obstruct justice. There are no precedents that I know of, to-date, in which a sitting President can legitimately pardon someone for the commission of a known crime, if that President was a known quantity in the commission of that crime.

    Finally, there will be the questions of crimes committed against those of other nations, outside the legitimate borders of the United States, that will fall into international jurisdiction. Given that Radovan Karadzic can be brought before the Hague, one can only surmise that “America’s collective Karadzic—the Bush administration”—will face just such an event in the foreseeable future….

  • If Bush pardons everyone then they can’t take the 5th when testifying against him. Can Bush pre-emptively pardon himself?

  • Racer X said:

    I’m pretty sure Victoria Toensing would like to see all the Plame Outing criminals pardoned. After all, they were all just acting in “good faith”.

    I robbed the bank in good faith!! I was only following GWB’s orders!! Send the Pardon Express!!

  • As SKI said at #13, blanket pardons would open the door to further investigations, which might be the basis for international trials at the Hague… Either way, it’s gonna be ugly.

  • President Bush, would you consider ‘pre-emptive pardons’?

    Yes.

    Is that even legal?

    See, it’s in question. All the more reason to try!

  • The presidential pardon power is plenary.

    There is no appeal against it, and no limits on what it applies to (execpt that it cannot undo the effects of an impeachment.) So long as the offense for which the offender is pardoned, potential or actual, is Federal, it’s the end of the legal road.

    Good summary here, from Berekely. I bet John Yoo has this sucker bookmarked.

  • I wonder if this is part of why Pelosi and Reid are so uneager to bring up impeachment charges. Maybe they are trying to lull the administration into a false sense of security, so that they can nail those left uncovered.

    The note about international courts is also revealing. I could see President Obama signing the ICC treaty, and getting it ratified by a Congress. Suddenly those pardons are no longer so appealing, since those punished by their own governments are considered duly treated…

  • The theory/excuse that the admin has proposed is that companies who “helped the gov’t” shouldn’t be liable if they broke the law, or something.

    So, why doesn’t the President just issue a blanket, pre-emptive pardon for anyone who has helped the government at any time–past, present, or future? Seems to make sense to me, if that is their reasoning.

  • There’s a precedent here that everyone seems to be missing, in that Nixon didn’t pardon himself

    But he could have, since the single Constitutional limit on presidential pardons is that they can’t be given to someone who has been impeached.

    Nancy Pelosi, I’m looking at you. Thanks for everything, Blinky.

  • Bushit would pardon the Chinese army if he had the chance. He’ll do it from the Rose Garden surrounded by Darth Cheney, Turd Blossom, Rummy and the rest. He’ll make the pronouncement with a shit-eating grin on his smallish face that will drive clear thinkers to despair which is only appropriate for an administration that used the Nazi model for it’s M.O.

    Hopefully, the World Court will see it correctly and issue arrest warrants for the “Cheney Gang” for war crimes. And even though they may never be extradited, history will tell the story correctly. I bet George and Babs are soooo proud of their son and all of his life-long accomplishments. Soooo proud….

  • I was led to believe that if impeachment hearings were begun while Bush was still in office then he could not pardon anybody. Not only the US but the world demands Justice if we are ever to redeem ourselves as the great nation of laws we once were.

    This urgency of the administration and the congress to hold no one accountable for the horrors of the past 7yrs. or to minimize the role of justice by saying the only accountability should just be voting them out of office makes me sick to my stomach. The dead and injured, the tortured and displaced cry out for justice as well as the American people whom the Washington establishment think they are above. These were crimes, felonies and those who committed them should not be left unpunished simply because they held public office at the time.

    Politicians will not refrain from corrupt and dishonest practices if they have no fear of consequences. If Cheney and Bush were hung or imprisoned then it would send a very clear message to those who in the future would consider acting above the law.

    Today, even Britain publicly denounces the USA calling them untrustworthy and a nation that tortures. If we let these criminals go without punishment then we condemn ourselves to they very reputation we say we abhor about terrorist states.

    Washington is trying to save its own ass at the expense of the nation and against the will of the people.

    “Armed revolution cannot defeat the US military…but it can effectively eliminate its political leaders”-anonymous

  • Here is something to consider, do a Goggle

    http://mobile.slate.com/detail.jsp?key=10890&rc=d_20080721

    Which high lights this:

    “”Yep. In 1866, the Supreme Court ruled in Ex parte Garland that the pardon power “extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” (In that case, a former Confederate senator successfully petitioned the court to uphold a pardon that prevented him from being disbarred.) Generally speaking, once an act has been committed, the president can issue a pardon at any time-regardless of whether charges have even been filed.””

    O.K. consider this, which is a huge problem in America Government connected to the Supreme Court. Why can not John Doe work out a letter of pardon pre-emption? Let’s say my uncle, a Neo-Con, is likely to go berserk because of the political imbalance is building against him in contemporary culture and, being high profile in public office, but stressed for what one considered “reasonable cause” could or would get a per-emptive pardon?

    So what does this tell Americans today? We have here what many could call is simple Uncle Sam Foolery way back when. If anything jumps out at you it should be that pre-emption was done way back. The executive branch of the Government, Bush and company, along with the Judicial is in a collective direction. Here I am only a Joe six pack to see such collusion results in horrible consequences for the public in general.

    Here, it shows the Supreme Court has only a respect for the person or friendship with abandonment to the common citizen. Today in our current corruption phenomena of political incoherence is due to Supreme Court decisions that have lead to the escalating problems that underscore the very reasons of treason cover-up in this case? Americans have been trailed into corner of no win situation in Iraq unless of course America stays in Iraq for another one hundred years. Yes, what my reflections are starting to perceive is the Supreme Court can and would if the time is right aid in treason to the President of the United States, today even if it puts America in jeopardy. And we are way in to jeopardy.

    It’s a sad time in America.

  • “Mr. Bush might be reluctant to issue such pardons because they could be construed as an implicit admission of guilt.”

    Not a question at all. Gerald Ford nailed it. If I pardon you President Nixon you are admiting to having committed a crime. That is a summary of their pre-pardon conversation.

    If Frat Boy wonder Boy George the Second, Prince of Incompetence at the center of the Texas Oil Mafia conspiracy to keep us driving internal combustion gasoline powered cars and destroying the wealth of this country, pardons ANYONE who acted on his orders, he is admitting to conspiracy to commit a crime.

  • I’ll wager $100 that just like Pelosi and as witnessed by his FISA ‘support’, Obama will tell us that the nation must move forward and not be bogged down by the “political mis-judgments and mis calculations” of the past administration, that the legislature must get on with the running of the country and cannot remain focused on this unfortunate period of history. “America has judged them and decided their fate by voting them out of office.”

    No investigations will result, Nothing will be done and there will be no accountability. The American people are powerless to do anything about it. I beg to be wrong. We will be facing unforeseen dire consequences as “a direct result” of our failure to hold this administration accountable for years to come. It will be as crucial a mistake as Bremmer discharging the Iraq army which led to the insurgency that killed over 4000 US soldiers, maimed and killed thousands more in the aftermath of that one decision.
    .

  • Regardless of whether or not someone has been pardoned, perhaps they could still be prosecuted. The results of that prosecution, as far as punishment goes, would be worthless if the person had been pardoned, but still, being able to know for a fact that these people are guilty as sin is worthwhile in and of itself. And also, the results might make for good info for the international courts.

  • The ICC cannot try Bush & Company for crimes committed in Iraq, Cuba, or the US. Their jurisdiction only extends to crimes committed in the territory of states party to the Rome Statute or to crimes allegedly committed by a national of a state party to that statute, which does not include the US, Iraq, or Cuba. The only exception is if the UN Security Council, acting under Chapter VII of the Charter, requests a prosecution. The US has a veto on this recommendation.

    I suppose a case could be made for acts committed in Afghanistan after 10 February 2003, but that would depend on what the act was and where it actually took place (i.e., Is a decision in DC to order torture at Bagram Air Base in Afghanistan a crime committed in the US or Afghanistan?), but even that is iffy.

  • Regardless of whether or not someone has been pardoned, perhaps they could still be prosecuted.

    Not criminally prosecuted, not within the U.S. However, civil cases are another matter.

  • If Bush issues blanket pardons, his security detail after he leaves office should be defunded.

  • I doubt that a “pre-emptive” pardon has to be considered legally valid. To do so, is to transmute the President’s pardon power into a general grant of immunity to prosecution. That would be equivalent to an absolute veto on the laws — surely, too much, too far.

    But, if the such “pre-emptive” pardons were to be accepted at face value, they would have the effect of lifting 5th amendment protections against being compelled to testify. The principals in Bush’s war crimes would be immune to prosecution, but fully exposed to investigation. Their testimony could be compelled by legal process, under penalties of perjury.

    Being compelled to testify against one’s self by legal process is barred in U.S. law by the 5th amendment, but it is not barred under the Napoleonic Code. Consequently, there would be no bar on introducing such self-incriminating testimony in war crimes trials abroad. And, of course, the writ of a Presidential pardon does not carry to The Hague.

  • There may be a secondary issue here.

    For example—“X” has knowingly committed crimes against the Constitution. X receives a presidential pardon, exempting X from criminal prosecution for X’s crimes, thereby placing me (and millions more just like me) in the precarious position of either (a) standing up for the Constitution, or (b) turning my back on the Constitution by accepting the validity of X’s presidential pardon.

    By whose authority am I forced, against my will, to recognize the validity of X’s presidential pardon? Why should I not, were I to meet X on a sidewalk, throw X to the ground and beat X into a state of silliness with a large rock?

  • Do you think that PRESIDENT Cheney will paradon former President Bush before Obama takes office next January.

    Of course, that would make Obama 45 instead of 44.

  • Prez ford issued a pardon to nixon for any crimes he may have committed while prez., or words to that effect. This was never challenged.

    Should bush do likewise for all his co conspirators, that act would also not likely be challenged; at least not by the Dems who are too busy grabbing onto their ankles whenever something happens.

    But, my thinking on the matter is that they can still be put under oath by various committees as well as courts. An interesting note about this is that the 5th would not be an option for anyone sporting a shiny bush pardon.

  • Bruce Wilder (and anyone else who doubts that a “pre-emptive” pardon would be considered legally valid):

    #1 — re-read comments above as to Ford’s pardon of Nixon.

    #2 — count how many GOP Supreme Court Justices there are on the bench.

    #3 — be sure to thank Speaker Pelosi for taking impeachment “off the table”.

  • Of course you are, Always hopeful. On another thread, you were also “Always hopeful” that your political opponent is struck down by Alzheimer’s Disease. Just be careful about making actual threats to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, or the Vice President.

  • But if Bush pardons underlings, they will have no Fifth Amendment protection and can be forced to testify incriminating those up the chain of command.

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