Monday, November 14, 2005

Abuse of Presidential pardons are the road to tyrrany

The founding fathers tried to ensure that no one branch of government (president, congress and judiciary) could dominate the other two. This was the reason for the so called "separation of powers." As James Madison put it in Federalist Paper No. 47:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.

Sadly, the founding fathers did not spot the loophole in the presidential power to pardon that could be exploited, and has already been exploited by past presidents. The problem is that the Constitution does not allow for a judicial or congressional challenge to a presidential pardon. The President can be impeached by Congress for issuing the pardon, but when both houses are held by the same party as the President, and when those houses are dominated by corrupt, unethical, power-hungry, evil men, that's not going to happen. But even if Congress suddenly came down with a case of ethics and impeached the President, abuse of the presidential pardon may render the impeachment null and void.

Take Scooter Libby. If his case goes to trial, and if he is found guilty, Dubya can issue a pardon without challenge. Therefore if the presidential pardon is abused in this way it follows that anyone in the executive can get away any crime. Of course, if the crime is serious enough, and the abuse of the pardon power egregious enough, Congress might impeach the President.

Of course, if the Libby case went to trial there would likely be testimony and evidence that damns Cheney, Rove and Bush as conspirators in Plamegate. So Dubya may abuse his powers even more by issuing a pre-emptive pardon. That not only gets Libby off the hook, it prevents others such as Rove, Cheney and even Bush himself from being put on the hook as a result of whatever would have come out at Libby's trial. It has been done by past Republican Presidents, so the precedent is there. You can basically have an executive that is composed of a bunch of corrupt crooks and they can get away with anything they want (or the President wants).

It is possible to conceive of cases involving national security (and by that I mean real national security which affects the well-being of the US rather than cover-your-ass stuff) where allowing a case to come to trial would reveal sensitive information to foreign powers, and so a pre-emptive pardon might, in rare cases, be justifiable. I believe that in the case of pre-emptive pardons, Congress should have the power to compel the President to explain his reasons (in closed session, of course); to compel the President to turn over all relevant documents; to compel the President to answer questions under oath; to sub-poena any other relevant person to answer questions under oath; and finally that the pardon will only be allowed to stand if both houses each approve it by a majority vote.

Recent Republican presidents took their abuse of the pardon power even further. They issued pre-emptive pardons not just for charges on indictments to prevent the case going to trial but for all crimes that may have been committed but are as yet unknown to prosecutors, and all crimes that may result in the future as an inexorable consequence of past crimes. The natural consequence of this is that a President can, at the very start of his term, put all of the executive above the law by granting them all pre-emptive pardons for anything they may do.

Again it's possible to conceive of a national security issue where this might be justifiable, one where any charge that might appear against a person would reveal something vital to national security. It would have to be one hell of a justification though. I believe that this, like the "ordinary" pre-emptive pardon, must be challengable by Congress. But that in this case each house must approve the pardon by a supermajority of two-thirds.

Finally, if we allow that the President should be able to issue pre-emptive pardons which cover not just known past crimes not just past crimes not yet known to prosecutors, but also future crimes, then there is one truly frightening possibility for abuse. One so horrible that Nixon, Reagan or Bush 41 didn't dare try it. But with the precedent of pre-emptive pardons against future crimes set by Bush 41, it is no longer unthinkable. What if, at the start of his term or whenever it becomes expedient, the President pardons himself for all future crimes committed while in office? The President truly becomes above the law. It is not even clear that he could then be successfully impeached. Congress might impeach the President, but how could they make it stick if he refused to vacate the office? Sure, refusing to vacate the office after being impeached is a crime, but the President has just put himself above the law. It is doubtful that there could be any legal redress that could be used to force him to step down. But even if the impeachment did succeed, the President has gotten away with all crimes committed and cannot be punished.

It is clear that the founding fathers did not intend the presidential pardon to be used in that way. It is also clear that this type of abuse is just one tiny step up from the precedent set by Bush 41. And the only way to prevent that happening would be to exclude the President from being able to pardon himself and say that only Congress, if each house approves by a supermajority of two-thirds, can pardon the President.

To put all these safeguards in place would require a Constitutional amendment. An amendment, in my opinion, that is required very urgently. Unfortunately, I doubt that such an amendment would be passed by Congress even if the Democrates gain supermajorities in both houses next year (and by then it would probably be too late even if they did pass it).


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